~ ja Is
'/////4»/% t.
' V ? ^p r r 4? ? $* '%r 8 3
%^ 4%i%%^ 4%%i24^ ^»M»^», %/s/s,
THE
CRIMINAL CODE OF THE JEWS
THE
CRIMINAL CODE OF THE JEWS
ACCORDING TO THE TALMUD
MASSECHETH SYNHEDRIN
LONDON
SMITH, ELDER, & CO., 15 WATERLOO PLACE
1880
{All rights reserved'}
MR AND MRS JOSEPH N. UNDO
THIS SERIES OF PAPERS
Is gbbicatefr
WITH EVERV SENTIMENT OF
KINDLY REGARD
2094518
PREFACE,
THE following chapters appeared originally
as articles in the ' Pall Mall Gazette.' They
are here re-printed without material altera-
tion, and with some few additions. To the
kindness of Mr. F. Greenwood, the writer
is indebted for many suggestions, which
were followed when preparing them for
publication.
CONTENTS,
CHAPTER I.
PAGE
INTRODUCTORY . i
CHAPTER II.
THE DEVELOPMENT OF THE MOSAIC CODE — OBSO-
LETE LAWS — THE LEX TALIONIS — PRESCRIP-
TIONS OF THE TALMUD . . . , .16
CHAPTER III.
THE CONSTITUTION OF THE COURTS — THE QUALI-
FICATION OF JUDGES — PERSONS DISQUALIFIED 28
CHAPTER IV.
THE CONSTITUTION OF THE COURTS — DIVISION
OF AUTHORITY — PROCEDURE . . . .42
CHAPTER V.
THE RULES OF EVIDENCE 56
Contents.
CHAPTER VI.
PAGE
FORM OF TRIAL IN CAPITAL CASES . . . 70
CHAPTER VII.
THE VARIOUS METHODS OF EXECUTION . . 84
CHAPTER VIII.
MURDER — ADULTERY — IDOLATRY . . .96
CHAPTER IX.
CITIES OF REFUGE — THE PUNISHMENT FOR PER-
JURY— FLOGGING .in
CHAPTER X.
MISCELLANEOUS LAWS — CONCLUSION . ... . 125
THE
CRIMINAL CODE OF THE JEWS.
CHAPTER I.
\ INTRODUCTORY.
HE who would understand a people must
know its laws, especially its penal laws : not
the mere dicta of its statutes, but their practi-
cal application ; and its scheme of judicial ad-
ministration. The legal code of a community
is — to coin a pseudo-scientific term — but a sys-
tem of applied morals. In the criminal legisla-
tion of a country is embodied the public stan-
dard of right and wrong. The organisation of
its tribunals, the simplicity of its procedure,
the severity of its penalties, the nature of its
punishments, are so many living illustrations
Criminal Code of the Jews.
of the wisdom and forethought and justice
and humanity of those who frame, interpret,
and abide by these laws. Nowhere are
national peculiarities more characteristically
prominent than in the juridical scheme and
penal practice of a people. Every detail is
instructive. What, for instance, can be more
suggestive of the temper of the ancient
Egyptian, with his high notions of rectitude
and his stern sense of justice, than the pro-
hibition of pleading on behalf of either plain-
tiff or defendant ? Sombre, impassive, and
undemonstrative sat the thirty judges and
their self-elected president in the hall of
assembly. With reverential awe for the
wise men, the suitors entered, each bringing
with him a written statement of the cause to
be adjudicated upon. The depositions were
handed to the chief of the tribunal, who re-
ceived them without question or comment.
The parties as silently withdrew : only when
the decision of the court had been arrived at
were the plaintiff and defendant re-admitted,
Introduction.
in order that the judgment might be commu-
nicated to them. The picture of inflexible
impartiality here presented to us is com-
plete.
Again, can anything be more charac-
teristic of Assyrian life than the inequality
between man and woman in the eyes of the
law which we find indicated in some of the
few fragments hitherto discovered of the
penal code of Ashur ? ' If a husband/ runs
a cuneiform text, ' say unto his wife " Thou
art not my wife," he shall pay half a minna of
silver.' But ' if a woman repudiate her hus-
band, and say unto him, " Thou art not my
husband " (ina naru inadussu]> he shall drown
her in the river.' In the criminal system of
the Athenians, too, it is not a little indicative
of the refined, hypersensitive, and artificially
cultured Greek to find him attempting to
emulate the ' gods ' by extending to the chil-
dren of an offender the punishment inflicted
on their parent. Even when a crime had
already been expiated by death, the descend-
B 2
Criminal Code of the Jews.
ants of the condemned suffered the penalty of
legal disqualification. Students of antiquity
have been by no means indifferent to the
lesson thus conveyed. The legal codes of
most ancient peoples have been diligently
examined. The laws of the Brahmans and
of the Parsis, of the Greeks and of the
Romans, of the Chinese and of the Mussul-
mans, have found zealous exponents. The
judicial system of the Hebrews alone has
been neglected. Notwithstanding its value
as a record of Jewish thought and feeling
and custom, it is almost unknown to English
scholars and jurists.
It is probably no exaggeration to assert
that not a dozen of the foremost Biblical
critics in England know anything of the legal
code of the Jews. The most profound igno-
rance prevails regarding the practical mode
of administering law and justice as it ob-
tained among the Hebrews during the pro-
phetic period and at the time of the destruc-
tion of the second Temple of Jerusalem.
Introduction.
The notions of Jewish law and jurisprudence
generally current are extremely vague and
undefined. The popular conceptions upon
the subject are gathered from the injunctions
and ordinances of the Mosaic Pentateuch.
As a matter of fact, the laws of Moses are
about as well calculated to give one an in-
sight into the Hebrew legal scheme as a
perusal of our statute-book — a collection of
our Acts of Parliament, our written law —
alone, without the aid of common law
and precedent, would give of the English
system of juridical procedure. He who
would understand the penal code of the
Hebrews — the practical code, that is, of the
people, as it was in operation during the
later period of Jewish nationality — must not
depend upon the Pentateuch. He must turn
to the Talmud — that much maligned and
even more misunderstood compilation of
the rabbins ; that digest of what Carlyle
would term allerlei-wissenschaften ; which is
at once the compendium of their literature,
Criminal Code of the Jews.
the storehouse of their tradition, the ex-
ponent of their faith, the record of their
acquirements, the handbook of their ceremo-
nials, and the summary of their legal code,
civil and penal. Herein he shall find a sys-
tem of jurisprudence ingenious and elabo-
rate ; a scheme of organisation at once
simple and effective ; and a criminal law the
most interesting and probably the most hu-
mane that antiquity has transmitted to us.
The sensation produced some few years
ago by the appearance of Dr. Deutsch's bril-
liant article on the Talmud is scarcely yet
forgotten. Had this accomplished scholar
been longer spared, literature would doubt-
less have been enriched with many a mono-
graph upon the thousand and one subjects
treated of in this composition of the rabbins.
Fate has decided otherwise. But the seed
he cast abroad into the world has not all fallen
into stony or sterile soil. He succeeded in
arousing a general and wide-spread interest
in the Talmud and its contents ; an interest
Introduction.
which the modern spirit of inquiry has in-
tensified. We purpose, therefore, to devote
to the criminal law of the Talmud as laid
down in Massecheth Synhedrin" — not wholly,
but principally there — a few brief chapters
explaining the organisation of tribunals
among the Jews, the constitution and juris-
diction of their Synhedrin, their system of pro-
cedure, their mode of examining witnesses,
their classification of crimes, the punishments
they inflicted, and their methods of executing
those capitally condemned. As we before
observed, the subject is one entirely unex-
plored ; and an exposition, however brief and
imperfect, cannot but throw additional light
upon the character, intellect, and peculiarities
of a truly wonderful people.
Two noteworthy — we cannot say success-
ful— attempts have of late been made to pre-
sent to modern times a fair and impartial
view of the criminal legislation of the He-
brews. One of these is the monograph of
M. Thonissen, in his ' Etudes sur 1'Histoire
8 Criminal Code of the Jews.
du Droit Criminel des Peoples Anciens.' The
other is the ' Legislation Criminelle du Tal-
mud' of Dr. Rabbinowicz. Both must be
regarded as failures — the former conspicu-
ously so. M. Thonissen, who is one of the
ablest Catholic professors in Belgium, has
failed from want of special knowledge ; Dr.
Rabbinowicz has failed in spite of profound
Talmudic knowledge and general erudition.
A few observations in explanation of this will
throw some light upon the peculiar nature
of the treatise which forms the basis of our
knowledge of the Jewish penal code. M.
Thonissen has founded his study of the sub-
ject upon the text of the Pentateuch, dis-
regarding altogether the commentaries of the
rabbins and their expositions. Now we have
no wish whatever to enter into any argument
as to the value of Hebrew tradition or the
Divine origin of the Oral Law. This, how-
ever, we assert : that the enactments, civil
and criminal, of the Five Books of Moses,
as they stand in the Bible are unintelligible
Introduction.
and incomprehensible unless accompanied by
the explanation furnished by the Mischna
and Ghemara, which together constitute the
Talmud. In the first place, Moses indicated
only general principles for the guidance of
the Hebrew judges. A system of legal pro-
cedure is altogether wanting. ' The wisdom
of a lawgiver,' says Bacon, ' consists not only
in a platform of justice, but in the application
thereof.' Moses furnished in the written law
such a platform of justice ; but the practical
application thereof can only be gathered from
the oral law, from the traditions and prece-
dents of the Mischna. We will quote one
contingency only — one among many others
that arise in practice — to show the occasional
inadequacy of the provisions of the Pentateuch
taken alone. According to the Mosaic law
a perjurer when convicted was to suffer the
same punishment as the person against whom
he testified would have been condemned to
had the false accusation been established. In
most cases the rule would suffice ; in a great
io Criminal Code of the Jews.
number it would be impracticable. For in-
stance, a kohen — a priest, that is — was for-
bidden to marry a woman who was divorced,
or a widow who had performed the cere-
mony of loosening the shoe of her brother-in-
law. Should he in defiance of this prohibition
marry such a female his sons were debarred
from the priesthood. Assuming now that an
Israelite charged a kohen with being the issue
of such a union — a charge which, if proved,
would remove him from his office — and this
witness was subsequently convicted of per-
jury : how could the slanderer who had vio-
lated his oath be degraded from what he was
not permitted to assume — the functions of
the priesthood ? No penalty in such a case
is provided by the Mosaic code. Yet it
could scarcely have been the intention of the
legislator to punish the lying witness in one
case and permit him to get off scot free in
another. The traditionary procedure clears
up the difficulty. Similar difficulties con-
tinually arise in the practical application of
Introduction. 1 1
most of the written enactments. In all these
instances we are driven to the Oral Law for a
satisfactory explanation. The Hebrew law-
giver foresaw probably the awkward contin-
gencies which would inevitably occur con-
sequent upon a hard and fast adherence to
ordinances formulated in the Pentateuch, and
suited only to the circumstances and conditions
of the people under his personal guidance and
supervision in the Wilderness. Hence his
injunction that the Jews should, immediately
upon their settlement in Palestine appoint
them 'judges and officers,' i.e. form regular
courts for the administration of justice. This
of course necessitated the inauguration of a
recognised mode of procedure formulated in
consonance with the traditions of the people,
and varied as the exigencies of the nation
required and experience rendered advisable.
The nature of the arrangements made in
compliance with the Mosaic injunction can
be gathered only from the Talmud. M.
Thonissen's essay upon the Jewish code re-
1 2 Criminal Code of the Jews.
sembles most nearly that which a foreigner
would write upon the English criminal laws
after a perusal of our statute-book — our Acts
of Parliament — disregarding such authorities
as Blackstone and Coke and Bracton, and
their common-law system, and ignorant alto-
gether of the practice of the courts and the
precedents they have established. What such
an exposition would be worth may easily be
imagined. That M. Thonissen should under
these circumstances have failed is scarcely to
be wondered at.
M. Rabbinowicz's failure is now to be
accounted for. He has given to the world
a disquisition upon the penal code of the
Hebrews in the shape of a critical transla-
tion of the treatise Synhedrin, and of such
portions of Makkoth as refer to the punish-
ment of criminals. He is himself a profound
Talmudist ; but he does not make allowance
for those who have not the advantage of
being intimately acquainted with the rab-
binical authorities. The Talmud, be it ob-
Introduction. 1 3
served, is essentially argumentative ; this
fact should constantly be borne in mind.
The Mischna no sooner lays down an axiom
than a Beraitha (precedent or tradition whose
origin is coeval with those contained in the
Mischna, but which the editor of the last-
named collection decided to omit) is brought
forward to contradict it. Hereupon the com-
mentators set to work in order to harmonise
the apparent inconsistency or disaccord. An
opponent will then urge against the agree-
ment thus established the opinion of one of
the Thanaim — rabbins, or heads of colleges,
who were anterior to, or contemporaries of,
the editor of the Mischna. The Amoraim
— doctors whose disquisitions constitute the
Ghemara — thereupon take up the discussion
pro and con. Frequently the arguments
terminate, and apparently no conclusion is
arrived at. It is this that renders the study
of the Talmud so extremely difficult. It
seems impossible to understand which of the
views enunciated by the respective authori-
14 Criminal Code of the Jews.
ties we are to accept as decisive. Only
those accustomed to the mode of reasoning
adopted by the rabbins, and acquainted with
the relative value to be attached to the dicta
of the several doctors as explained in the
various commentaries, can deduce the laws
with any approach to accuracy.
Many points, however, are wholly unde-
termined, and probably always will remain
unsolved. In giving a translation of the
treatise Synhedrin M. Rabbinowicz has
therefore placed in the hands of the reader
the material whence he may derive a know-
ledge of the criminal law. Some explana-
tions of seemingly difficult points are given ;
but the student must pick his own way with-
out the training or help which would enable
him with profit to do so. Of the multifarious
opinions expressed he nine times out of ten
knows not which to choose. Hence, despite
the undoubted ability of the author, and the
acknowledged merit of the work itself, Dr.
Rabbinowicz has not succeeded in giving a
Introduction. 1 5
digest of the criminal law of the Talmud.
His introduction is by far the best part of
the work ; but the views therein expressed
do not always merit complete and entire
acceptance. We shall, as we proceed, in-
dicate here and there the doubtful points,
as they appear to us, of M. Rabbinowicz's
summary.
Having thus briefly, by way of intro-
duction, explained the source whence our
knowledge of the Hebrew penal code is to
be derived, and pointed out what we regard
as the defects of those who have of late
attempted an exposition of the enactments
of which it is composed, we may proceed to
the consideration of this interesting judicial
system.
1 6 Criminal Code of the yews.
CHAPTER II.
THE DEVELOPMENT OF THE MOSAIC CODE — OBSOLETE
LAWS — THE LEX TALIONIS — PRESCRIPTIONS OF THE
TALMUD.
THE penal code of the Hebrews in the
Talmudic period had developed itself gra-
dually in a manner somewhat similar to the
Athenian criminal law in the days of Demos-
thenes. In each of these legal systems we
can discover three elements superimposed.
In the case of the Greeks there had been
originally the laws of Draco formulated about
six centuries before the Christian era. They
consisted of a series of religious ordinances
and traditionary practices. These were sub-
sequently modified by Solon ; still further
amended in all probability by Clisthenes
after the triumph of the Democracy. This
period saw the institution of popular tribu-
Mosaic and Talmudic Laws. 1 7
nals at Athens, and the assimilation of the
mode of procedure in civil and criminal cases.
Towards the end of the fifth century B.C. the
progress of the state and the multiplying of
parties led to a further development of the
legal system. One of the results of this, by
the way, was the appointment of a public
prosecutor. Three analogous stages of
growth — though not quite so clearly marked
in the second epoch — are discernible in the
development of the Hebrew laws, as we find
them formulated in the Talmud. There are,
in the first place, the Mosaic injunctions,
religious, social, and political, which constitute
the foundation of the scheme. There are
then the practical details as to the organisa-
tion of the tribunals. These must have had
their origin in the early days of the Jewish
Commonwealth ; most probably during the
lifetime of Joshua. One of the principal
commands laid upon the Israelites in the
Wilderness was, as we have already men-
tioned, to appoint judges, i.e. establish courts
1 8 Criminal Code of the Jews.
for the administration of justice, as soon as
they were settled in Palestine. (Deut.xvi. 18.)
Lastly, we find in the Talmud, laws attri-
butable evidently to the period which inter-
vened between the destruction of the first
and second Temples. About this time a
number of the Mosaic ordinances had be-
come utter anachronisms. Some were per-
fectly impracticable • one or two were no
longer even understood. The exigencies of
the age and the circumstances of the people
necessitated the adoption of several enact-
ments unknown to the Pentateuch. Through-
out, however, the whole of the penal code of
the Talmud — as in its various stages of de-
velopment— the Divine origin of the Hebrew
legal system is never for a moment lost
sight of. The abolition of a Mosaic enact-
ment is with the Rabbins simply a state-
ment that it has fallen into desuetude. In
formulating a new law, rendered necessary
by the altered condition of their existence, it
is invariably founded upon some principle or
Mosaic and Talmudic Laws. 19
other contained in the Written Law, or de-
ducible from the general dicta therein laid
down by their inspired legislator. Like the
Greeks — ' The Sons of Saturn,' sings Hesiod,
' gave to man justice, the most precious of good
gifts' — the Jews, in the interpretation of their
ancient laws, as in the application of new
ordinances, were ever mindful of the Divine
source whence their system of judicature
originated.
The Mosaic prescriptions, which in the
course of time had fallen into desuetude, and
had in fact become altogether obsolete, in-
clude many of the most characteristic laws
of the Pentateuch. Am.ong such ordinances
was the injunction which determined the
punishment of a stubborn and rebellious son.
Of this commandment the Ghemara — by the
dicta of Rabbi Simon — observes : ' The
Biblical law concerning a stubborn and re-
bellious son never has been and never can be
practically applied. If we nevertheless study
it, it is simply as one does a literary ex-
c 2
2O Criminal Code of the Jews.
ercise.' Similarly, the Mosaic enactment, in
accordance with which a city given to idol-
atry was ordered to be destroyed, had be-
come a pure anachronism in the latter days
of the Jewish nationality. According to the
Talmud, this law could not have been carried
into effect at any period. And the penal
code further took no longer any cognisance
of a large class of offences known as acts of
omission. An extremely important ordi-
nance of the Pentateuch concerning the pu-
nishment of perjurers was imperfectly under-
stood by the Rabbins. The apparently simple
law which determined the penalty incurred
by witnesses whose evidence was proved to
be false was beset with difficulties, and found
inapplicable to the times. The Ghemara
declares through Rabba that the ' Mosaic
injunction which condemns the witness who
is perjured, by proving an alibi against him,
is a hidousch — a law we are not able to ex-
plain or comprehend.'
Among the ordinances of Moses, of which
Mosaic and Talmudic Laws. 21
no trace is to be found in the Talmud, is the
so-called lex talionis. More nonsense has
probably been written respecting this law of
retaliation (which crops up in- every code
of antiquity) than would fill the proverbial
bushel a goodly number of times. It is gene-
rally quoted as satisfactorily demonstrating
the harshness and severity of the punish-
ments ordained in the Pentateuch.
More than one theological school con-
sider the dicta ' eye for eye, tooth for tooth '
as the very quintessence of Jewish legisla-
tion. The odium attached to the Mosaic
code, on account of this law, furnishes an-
other illustration of the vulgar adage about
giving a dog an ill name. Curiously enough,
there is a remarkable parallel to this miscon-
ception in the case of the Athenian jurist
Draco. His code is fabled to have been
written in blood ; death was the least of the
punishments he inflicted. His name has fur-
nished an appellation for all that is harsh
even to cruelty, unmerciful even to barbarity.
22 Criminal Code of the Jews.
Yet what is the truth ? His laws relating to
homicide (graven on a pillar at Athens) con-
tinued in force as long as the city was inde-
pendent. A murderer was permitted, under
this code, to fly in order to escape the ven-
geance of the family of his victim. Sentence
of exile could be pronounced by the judges
in cases of manslaughter. Degradation from
the rank of citizen was one of the penalties
of his system. And more remarkable still,
Pollux (ix. 61) distinctly says that the fine
for slaying a man was ten oxen ! So much
for the reputed severity of the Draconic
Laws. The ridiculous and wholly absurd
nature of the prejudice anent that bugbear
of the Five Books of Moses, the law of re-
taliation, is even more unfounded than in the
case of Draco.
The lex talionis was simply a law by
which a person deliberately and purposely
and maliciously inflicting upon another cer-
tain specified injuries, was liable to have
similar injuries inflicted upon his own person.
Mosaic and Talmudic Laws. 23
This penalty was directed against a mode of
vengeance extremely prevalent in ancient
days. Mutilation, dismemberment, and simi-
lar eccentricities of our progenitors, ' the chil-
dren of the world,' were common methods
of hurting one's supposed enemies, especially
in eastern lands. There such practices are
by no means forgotten even now. The ob-
ject of the criminal was to palpably and
visibly disfigure or emasculate his victim. In
such cases what would have been the deter-
rent effect of a pecuniary indemnity, of incar-
ceration, or even of corporal punishment ?
None whatever, where a man had determined
upon injuring his opponent in a manner suffi-
ciently conspicuous to disgrace or dishonour
him. Nothing but the lex talionis was likely
to prove of service in preventing the commis-
sion of such inhuman and dastardly outrages.
That the law was not otherwise applied by
any nation we have ample evidence to show.
Among the Greeks, for instance, who in-
cluded this enactment in their ancient code,
24 Criminal Code of the Jews.
(' Evil for evil,' says /Eschylus, 'was the sen-
tence of ancient days ') one of the principal
functions of the second of the Athenian tribu-
nals was to arrange between the murderer
and the parents of his victim the payment of
the blood-money authorised by their penal
laws. To suppose that a man guilty of a
capital offence should be condemned in a
pecuniary penalty, while one accidentally in-
juring his neighbour was subject to the lex
talionis, would be the height of absurdity.
Among the Hebrews the necessity for pre-
serving the law of retaliation as part of the
legal code had disappeared long before the
Talmudic period. In accordance with their
traditions, all cases of assault or wounding
were punishable by fines, the offender making
full and ample indemnity to the person hurt.
With regard to the new laws formulated
in the Talmud, and of which no trace what-
ever is to be discovered in the Pentateuch,
there is one of the utmost significance ; one
that will admit of a very simple explanation,
Mosaic and Talmudic Laws. 25
though M. Rabbinowicz, in his introduction
before alluded to, seems to misapprehend it
somewhat. It is the law requiring evidence
that a warning was given to the individual
about to commit a crime, that the act he con-
templated was an offence entailing such and
such a punishment or penalty. The Bible
knows nothing whatever of such a proviso.
It required merely the testimony of compe-
tent witnesses as to the fact that a crime had
actually been committed ; and that the said
witnesses had detected the accused in fla-
grante delicto. Certain of the Rabbins, how-
ever, seem to assert that to ensure conviction
in a capital trial, it must be proved that the
culprit — prior of course to the perpetration of
the offence — was cautioned that the crime he
contemplated was murder ; that the perpetra-
tion entailed death ; and more, he must have
been informed which of the four kinds of
death he was liable to suffer if convicted !
This certainly is a very remarkable pro-
vision if intended to be construed as Dr.
26 Criminal Code of the Jews.
Rabbinowicz points out. He regards this law
of the Talmud as purposely enacted in order
to abolish altogether the punishment of death.
It would of course have this effect. For no
individual would be likely to inform his
friends or neighbours, or acquaintances, that
he was about to commit a murder. The op-
portunity to give him this preliminary warn-
ing would never, in point of fact, occur. The
same of adultery, or seduction with violence,
crimes which were also punishable with
death. By insisting upon this conditional
circumstance as absolutely necessary to ensure
a capital conviction, the criminal would, as
intended, invariably escape the penalty of
death. Against the views of Dr. Rabbino-
wicz we would urge two very simple facts.
In the first place the ordinances and precau-
tions of the Talmud were already — and
without the proviso referred to — more than
sufficient to prevent the sentence of death
from being pronounced except in extremely
rare cases. And in the second place, the
Mosaic and Talnmdic Laws. 27
opinions of many of the Thanaim are, as we
shall in the proper place fully explain, op- ,
posed to the assumption of Dr. Rabbinowicz.
The true purpose and object of, this curious
institution of the Talmud will then appear.
28 Criminal Code of the Jews.
CHAPTER III.
THE CONSTITUTION OF THE COURTS — THE QUALIFICA-
TION OF JUDGES — PERSONS DISQUALIFIED.
FOR the administration of justice there existed
among the Hebrews three kinds of tribunals :
i, Petty courts composed of three judges, and
competent to adjudicate upon civil causes
only ; 2, The provincial Synhedrin, consisting
of three-and-twenty members, and having
criminal jurisdiction as well as the power of
deciding in ordinary matters ; and, 3, The
Great Synhedrin of Jerusalem, which was the
supreme authority of the nation. In contra-
distinction to the practice of every other
ancient nation, the King, among the Jews,
was not permitted to exercise judicial func-
tions. Unlike the High Priest, he could
neither judge nor could he be judged. Nor
Organisation of the Tribunals. 29
had the Sovereign any voice, prerogative, or
influence in the appointment of the judges ;
nor was it for him to interfere in any way
with the organisation of the various tribunals.
The people alone had the right to nominate
the members of the Synhedrin. The scheme
of legal administration was based on the
representative system and what we should
nowadays term universal suffrage. In the
case of the petty courts for the trial of civil
processes the mode of appointment was es-
sentially primitive and simple. The plaintiff
and defendant in a cause nominated each of
them a competent person to act as judge.
The two who were thus selected together
named a third. Of course these tribunals
were not permanent They sat only when
required.
In the case of the courts of criminal juris-
diction the mode of organisation and the
manner in which they were constituted
were as follows : — Every town inhabited by
one hundred and twenty families could have
Criminal Code of the Jews.
a Synhedrin of three-and-twenty members
To each place thus qualified the Great Syn-
hedrin of Jerusalem sent an order bidding the
residents assemble and nominate from among
themselves such as were ' learned and modest
and popular.' Fit representatives and apt
were accordingly elected. A return was
thereupon made to the Great Synhedrin, and
the supreme body immediately despatched
an authorisation, in conformity with custom,
which constituted the delegates named a cor-
porate Synhedrin. As a rule these tribunals
in the smaller towns sat only occasionally for
judicial purposes. But in large and im-
portant centres there were, necessarily, per-
manent courts. In those cities where rabbini-
cal colleges were established for the study of
the law, such institutions, by a natural transi-
tion and development, came to be charged
with the administration of justice. Such, for
example, were the academies of Jabneh,
under the famous Gamaliel ; of Beni Berak.
under Rabbi Akiba ; of Lud, under Rabbi
Organisation of the Tribunals. 31
Eleazar ; of Sikhni, under the direction of
Hananya ben T'radyon.
In Jerusalem there were three Synhedrin :
two ordinary, of twenty-three members each,
and the Great Synhedrin of the nation, con-
sisting of seventy-one of the most eminent
judges of the country. The first sat in that
part of the Temple called the Har-habaith ;
the second, in the court known as the
Azara ; and the supreme council in the Lish-
kat-hagazith. The first consisted of members
selected from the various provincial Synhe-
drin ; the second was recruited from the first ;
and the Great Synhedrin, in turn, filled up
any vacancies in its numbers from those who
composed the second. This completed the
administrative system of the Hebrews for
judicial purposes. The organisation was ex-
ceedingly simple, eminently representative,
and it seems to have been thoroughly effec-
tive. Every suitor found at his own door a
tribunal competent to hear and decide his
plaint without delay or expense ; criminals
32 Criminal Code of the Jews.
were spared suspense and ignominy by being
able to secure an immediate trial ; and within
easy reach of either complainant or defendant,
prosecutor or prisoner, was a permanent Syn-
hedrin to which appeals could be made from
the sentence or decision of the local court.
Under this scheme every man — every
Jew, that is — might aspire to the dignity of a
judge. In order, however, to prevent any
but competent and well-qualified persons
from being appointed to the various tribunals
ample precautions were taken. It was not
necessary in the case of the provincial Syn-
hedrin to guard against sheer inefficiency.
No Israelite could be absolutely ignorant of
the law. It must be remembered that educa-
tion was well advanced among the Hebrews,
especially after the first or Babylonian cap-
tivity. A system of compulsory instruction
had been introduced by Joshua, the son of
Gamala. There was a school-board for each
district. Every child more than six years
of age was obliged to attend the communal
Organisation of the Tribunals. 33
schools, unless receiving private lessons at
home from qualified tutors. Such importance
does the Talmud attach to the training of the
young that it enters into the minutest details
upon the subject. From his earliest years
the Jewish boy was a diligent student of the
Bible. It was his primer and reading-book.
Its laws and traditions were almost as fami-
liar to him as his own existence ; they formed
part and parcel of his every-day experience.
In riper manhood he attended each even-
ing after labour the expositions of the Scrip-
ture. On Sabbaths, on festivals, and on the
mornings of Monday and Thursday, he was
present as a religious duty at the public read-
ing and interpretation of the law.
A Jew could not but be well acquainted
with the leading principles of his legal code
and their general application. He was, in
fact, competent to decide — much as our jus-
tices of the peace are — any ordinary infractions
of the law likely to occur in his own district.
But to become member of a Synhedrin having
D
34 Criminal Code of the yews.
extensive criminal jurisdiction, to be qualified
to act as judge in a trial involving the life
or depth of a fellow-creature, was another
matter. Here legal acumen, proved ability,
sound knowledge, and undoubted integrity
were required. Such men, ' learned in the
law' and versed in science, might subse-
quently be admitted into the Synhedrin of
Jerusalem, the supreme council of the na-
tion. The standard of qualification was
therefore necessarily high in every particular.
Accordingly, when a mandate from the capi-
tal authorising the formation of a criminal
tribunal arrived in a town, the residents took
every precaution to nominate such men whose
antecedents and acquirements guaranteed
their fitness for the posts they were to occupy.
The election of representatives incompetent
and inapt might have been followed by a
refusal of the certificate of legality from the
Great Synhedrin.
Few things are more remarkable in the
Hebrew penal code than the clauses by which
Organisation of the Tribunals. 35
certain persons were disqualified from acting
as judges, under any circumstances whatever.
All who made money by dice-playing, by
any games of hazard, by betting on pigeon-
matches, and similar objectionable practices,
were not only, incapable of becoming members
of a tribunal, but were not permitted to give
evidence in a trial. The Ghemara regards a
man who gains money by the amusements
named as actually dishonest. A Jew who
was in the habit of lending money upon
usury was in like manner disqualified. The
disqualification extended not only to those
who took interest of their brethren, but even
to cases where the money had been borrowed
by a heathen. Nor could a slave-dealer sit
as judge. The Talmud stigmatises such a
person as inhuman and unfeeling, and inca-
pable therefore of deciding an issue involving
the life or liberty or even property of another.
Of course this ordinance applied to the traffic
in human creatures who were not Jews ; the
kidnapping of an Israelite being punishable
D 2
36 Criminal Code of the yews.
with death. The following were also regarded
as judicially incapacitated : those who dealt in
the fruits of the seventh year, for they could
not be deemed conscientious ; those who were
in any way concerned in the cause to be adju-
dicated upon, for they were interested ; all
relatives, no matter what the degree of con-
sanguinity, of the person accused ; all who
would inherit property from the criminal who
was on trial, or would benefit by his condem-
nation or loss ; and persons who had been
guilty of seduction or the lesser form of adul-
tery which was punishable by fine or flogging.
One other disqualification, noteworthy in
its way, also existed. A man who had not,
or had never had, a fixed occupation, trade,
or business, by which he earned a livelihood,
was not allowed to act as judge. ' He who
neglects to teach his son a trade,' say the
rabbins, ' is as though he taught him to steal.'
Such a lad had no resource in manhood but
to beg or rob. A man without a calling or
profession was moreover regarded as not cal-
Organisation of the Tribunals. 37
culated to have consideration or sympathy
for those exposed to the hard contingencies
of life. In trials where capital punishment
might be inflicted in case of Conviction the
following also were disqualified : — An aged
man, because his years and infirmities were
likely to render him harsh, perhaps obstinate
and unyielding ; a judge who had never had
any children of his own, for he could not
know the paternal feeling which should warm
him on behalf of the son of Israel who was
in peril of his life ; and a bastard ; not an
illegitimate son — for such a relationship could
not exist among the Jews — but one born of a
forbidden or criminal connection. Nor under
any circumstances was a man known to be
at enmity with the accused person permitted
to occupy a position among his judges. Such
enmity was, by the way, presumed to exist
when the judge or witness had not spoken to
the person charged with any offence for a
period of more than three days.
According to Massecheth Synhedrin,
Criminal Code of the Jews.
mental qualities and intellectual acquirements
of no ordinary character were necessary to
constitute a competent judge. He was, in
the first instance, to be modest, of good re-
pute among his neighbours, and generally
liked. He must have been intimately ac-
quainted with the written enactments of
the legal code, its traditional practices, the
precedents of the colleges, and the accepted
decisions of former judges. He must have
studied not alone the laws applicable to the
times in which he lived, but those which from
altered circumstances had fallen into desue-
tude. He was required to be a proficient in
various branches of scientific knowledge, es-
pecially in medicine and astronomy. That
the rabbins were well grounded in physiology,
pathology, and such modes of chemical and
organic analysis as were then understood can
be shown by many instances. Thus we find
Rabbi Ismael and his pupils engaged in dis-
section in order to study the anatomy of the
human frame (Bekcroth) ; Baba bar Boutah
Organisation of the Tribunals. 39
(Ghittin) is recorded to have demonstrated,
in a case before him, that a witness had
attempted to impose upon the court, by
bringing the albumen of an egg, and falsely
representing it to be spermatic fluid. And
the Academy of Hillel is said to have con-
tained among its disciples eighty who were
acquainted with every branch of science
known in those days. A knowledge of lan-
guages, too, was indispensable for those who
aspired to the membership of a Synhedrin.
The services of an interpreter were never
permitted. The judges were therefore bound
to be acquainted with the tongues of the
neighbouring nations. In the case of a
foreigner being called as witness before a tri-
bunal it was absolutely necessary that two
members should understand the language in
which the stranger's evidence was given ; that
two others should be able to speak to him ;
while another was required to be both able
to understand and to converse with the wit-
ness. A majority of three judges could
40 Criminal Code of the Jews.
always thus be obtained on any doubtful
point in the interpretation of the testimony
submitted to the court. At Either there
were three rabbins acquainted with every
language then known ; while at Jabneh there
were said to be four similarly endowed with
the gift of ' all the tongues.'
As regards the general ability of the
judges, Rabbi Jehuda asserts that ' they should
be such apt and skilful logicians that they could
demonstrate from the written text of the Pen-
tateuch itself that all the reptiles therein de-
clared to be impure were pure ' ! Indeed, to
those acquainted with the Talmud, nothing
is more startling than the resources of argu-
ment displayed by the rabbins. That it is in
many cases purely sophistic does not detract
from their high character any more than the
forensic casuistry of a modern counsel de-
tracts from the morality of the man. And
their intellectual acumen, their logical powers,
were employed on behalf of the criminal,
Organisation of the Tribunals. 41
whose advocates the judges themselves were.
Of this we shall see more later on.
When, therefore, the Talmud insisted
upon a high standard of qualification for the
members of the Synhedrin, it was animated
not alone by a due and proper regard for the
dignity of the judicial office, but by a merci-
ful consideration for the offender, and a desire
to secure for one whom they looked upon
as an unfortunate brother, the advantage of
skilful, acute, and learned counsel.
42 Criminal Code of the Jews.
CHAPTER IV.
THE CONSTITUTION OF THE COURTS — DIVISION OF
AUTHORITY — PROCEDURE.
THE jurisdiction exercised by each of the
three kinds of tribunals engaged in the admi-
nistration of the penal laws was clearly de-
fined. A conflict of authority was impossible.
Each court took cognisance of certain speci-
fied offences, and of these only ; each court
possessed the power of inflicting certain
punishments or of imposing certain penalties,
and none other. Even the amount of fine
or indemnity payable in the majority of cases
was already determined by written enact-
ment. And where this was not so fixed or ap-
proximately indicated, the constitution of the
tribunals permitted of arbitration, and an
estimate of the penalty incurred by an offender
could readily be arrived at.
Jurisdiction of the Courts. 43
Before describing the authority and privi-
leges attached to the respective tribunals it
is necessary to note that, owing to the pre-
scriptions of the Mosaic code, the classifica-
tion of crimes among the Hebrews was some-
what different to that generally prevailing in
modern times. Many offences which in our
days are considered to infringe only the
moral code were regarded among most an-
cient peoples in a very different light. Such,
for example, are adultery and idolatry.
These among the Jews entailed death.
Again, many crimes now generally punish-
able with imprisonment were, according to
the Hebrew laws, only punishable by fine or
pecuniary indemnity to the prosecuting party.
Among these are theft of all kinds, assaults,
injuries to the person, and damage to pro-
perty.
Another large class of offences was un-
known to the Jews. There were in Pales-
tine no game laws ; there could therefore be
no poaching. The relief of the poor was
44 Criminal Code of the Jews.
compulsory ; there was no pilfering. It was
permitted to enter a neighbour's garden or
orchard or vineyard and eat one's fill ; petty
larceny and trespassing were therefore impos-
sibilities almost in rural districts. Hence the
penal code of the Hebrews dealt practically
with a comparatively small number of of-
fences briefly specified, clearly defined, and
entailing in each case a fixed punishment or
penalty, which could not be varied. The
jurisdiction of the respective courts admitted,
therefore, of easy definition. The ordinary
tribunals, composed of three judges, adjudi-
cated summarily upon all cases of assault, all
cases of theft, all cases of robbery with vio-
lence, and all cases of injury to person or
damage to property. In fact, all crimes en-
tailing pecuniary penalties upon those con-
victed of their commission were tried before
the courts of three members. In every in-
stance it was deemed an advantage, in later
Talmudic times, to have at least one mumcha
(authorised jurist) among the three. The
Jurisdiction of the Courts. 45
presence of such a rabbin added, of course, to
the local repute of the court in which he sat.
It may be worth while pointing out here that,
apart from the legal jurisdiction pertaining to
them, these bodies performed when required
certain other functions, some of them semi-
religious. They could, for instance, estimate
the worth of the fourth year's produce, which
had to be paid to the priests ; they acted as
arbitrators ; they formed a court of equity ;
they could pronounce judgment in ordinary
business litigation ; they could absolve an
Israelite from a rash vow ; and (a rather
difficult task, if the Jews of old resembled in
some respects their modern representatives)
they could declare the personal worth of a
Hebrew when he had sworn to give an equi-
valent sum to the Temple.
A Synhedrin of three-and-twenty mem-
bers was competent to judge all criminal
cases, involving (i) capital punishment ; (2)
internment in a city of refuge ; (3) imprison-
ment or seclusion for life ; and (4) corporal
.46 Criminal Code of the Jews.
punishment. To these four classes of
offences belong murder, adultery, blasphemy,
idolatry, incest, manslaughter, and seduction
with violence. An animal (an ox that had
gored a man so that he died) was also con-
demned to be slaughtered by a tribunal of
three-and-twenty judges. The beast was in
some sort put on trial ; because of the heavy
pecuniary penalty imposed where the owner
could be proved to have known the vicious
propensities of the animal. The value of a
life had to be estimated by the court in such
cases. The Synhedrin (like the smaller
courts of three) sat whenever occasion re-
quired, and always en permanence on Mon-
days and Thursdays. These days were se-
lected for the regular administration of justice
on account of their convenience to judges,
suitors, and the public. On the mornings
named the inhabitants of the outlying dis-
tricts and suburbs came into the towns for
the purpose of attending the reading of the
law in public assembly. Every adult male,
Jurisdiction of the Courts. 47
unless incapacitated by sickness, was present
on these occasions. Here, then, was an ex-
cellent opportunity for the settlement of dis-
putes and the trial of offenders, But there
were other reasons for the regular bi-weekly
meeting of the Synhedrin. These courts of
three-and-twenty members constituted the
local governing body of their district or divi-
sion. Their functions were important and
multifarious. They estimated the amount of
the taxes to be imposed ; they organised the
distribution of communal charity ; they were
charged with the management and adminis-
tration of the public elementary schools ; they
saw that weights and measures were care-
fully inspected from time to time, affixing
their seals to all legal standards ; they con-
structed, examined, and repaired the defences
of the walled towns ; they were the local
highway board ; they were sanitary authori-
ties ; they discharged the thousand and one
duties of local government.
The mode of procedure in ordinary trials
48 Criminal Code of tJie Jews.
was very simple. The prosecutor attended
before the Synhedrin and lodged his com-
plaint ; the officer appointed by the court for
that purpose sought the accused person and
brought him before the tribunal. The wit-
nesses were summoned and heard. Both
parties then quitted the hall where the trial
took place. The judges deliberated, and
afterwards readmitted the prosecutor and
the defendant. Judgment was then pro-
nounced. No advocates were heard ; the
members of the tribunal deeming it meri-
torious to exercise the utmost ingenuity in
order to discover mitigating facts or ex-
tenuating circumstances when the law was
clearly against the accused. Right of appeal
existed and had to be acted upon within
thirty days of the original hearing. In such
cases the cause was taken to a neighbouring
Synhedrin, which, from its containing a
greater number of more learned and prac-
tised jurists, was deemed of superior autho-
rity. In all instances, whether the trial was
before a full court or an ordinary tribunal of
Jurisdiction of the Courts. 49
three, the reasons and arguments upon which
the decision was founded had to be commu-
nicated to the suitors. But, on the other
hand, the fact of there having been any
dissentient judges among the members was
always carefully concealed. As a natural
consequence the sentence pronounced was
regarded as the unanimous decision of the
tribunals. Dissatisfaction was thus dis-
couraged, and appeals were probably, as
one of the rabbins states, of infrequent occur-
rence.
The Great Synhedrin of Jerusalem, con-
sisting of seventy-one members, was, as the
supreme council of the nation, the highest
court of criminal jurisdiction. This impor-
tant body, and this body only, was competent
to judge (i) a High Priest against whom an
accusation had been preferred ; (2) a false
prophet ; (3) a city given to pagan practices ;
and (4) an entire tribe. In the legal adminis-
tration of the Hebrews the principal duties
devolving upon the grand tribunal of the
5<D Criminal Code of the Jews.
capital were : to exercise a species of super-
vision over the provincial Synhedrin ; to
grant the certificates authorising their con-
stitution and confirming their legality ; to
furnish precedents and traditions whenever
required by the subordinate courts, and to
give satisfactory interpretations of doubtful
and difficult points. If a case, civil or
criminal, was brought before an ordinary
tribunal of three-and- twenty judges, and
these found themselves without a registered
decision which enabled them to pronounce
an authoritative sentence, a statement of
the facts was carefully prepared and sub-
mitted to a neighbouring Synhedrin supposed
to be of greater repute. If these found a re-
corded precedent or accepted judgment in an
analogous case, it was explained to the dele-
gates of the other court. If, on the other
hand, no such tradition was forthcoming,
application was made to the first of the
Synhedrin in Jerusalem, that sitting in the
Har-habaith. Should these find themselves
Jurisdiction of the Courts. 5 1
unable to give the required assistance, an
appeal was made to the second Synhedrin,
located in the Azarah. If, again, this court
was not in possession of a satisfactory tradi-
tion, the matter was brought before the Great
Synhedrin. In all cases where no precedent
existed this body decided in accordance with
justice and equity. The case was laid before
them, carefully discussed, and after due de-
liberation the assembly voted. The views of
the majority were considered binding. Non-
compliance with a judgment of the Great
Synhedrin was punishable with death. An
elder, or judge, who acted or taught in
contravention of the decisions of this august
council was by the Mosaic code to be con-
demned to die. The Talmud made a notable
distinction in the application of this law. If
the heterodox teaching of the recalcitrant
individual was directed against an injunction
of the Pentateuch he was not condemned ;
if against the tradition, or precedent, or inter-
pretation of the Synhedrin he could be capi-
E 2
5 2 Criminal Code of the Jews.
tally convicted. This apparently places the
dicta of the rabbins above the words of the
sacred and inspired text. The explanation,
however, is simple. Contrary to the received
impression that the Talmudists adhered to
the letter and neglected the spirit of the Law.
the reverse was the case. They investigated
the motive and endeavoured to ascertain
the object of each enactment. Now, Moses
wished only to prevent an elder from lead-
ing the people astray by teaching what was
illegal. A lawyer who nowadays advised a
client that forgery and embezzlement were
under certain circumstances not criminal
would scarcely succeed in deceiving the
most addle-pated individual who came to
him for counsel ; but the same authority
might do serious injury, even to educated
men, by misrepresenting the decisions of the
law-courts on matters of common interest
or private concern. So the rabbins argued.
An elder who taught in opposition to an
explicit command of the Pentateuch could
Jurisdiction of the Courts. 53
do little or no harm, for everybody knew
the injunctions of Moses ; but he who mis-
interpreted to his community the decisions
of the Synhedrin might cause irreparable
mischief to his brethren generally. Hence
the practice of the Talmud. The Great
Synhedrin at Jerusalem possessed likewise
the power to condemn or exile in times of
danger, or for the public good, any person
who was considered dangerous to the com-
munity. No tribunal, it must also be noted,
could try or punish a person for an offence
perpetrated in its own presence. If a murder
was committed in full view of a Synhedrin,
the criminal had to be taken before another
court of three-and-twenty judges in order to
be examined, and if found guilty convicted.
It will be seen that a trial before a Syn-
hedrin was virtually a trial by jury. The
members of the court were moreover the
prisoner's counsel as well as his judges.
They sought to interpret the law in his
favour; failing this, they endeavoured to
54 Criminal Code of the Jews.
find extenuating circumstances. As jury-
men they could make such recommendations
of mercy as their own feelings dictated : as
judges they could give practical effect to
these recommendations. In fact, the trial
was a trial by jury without the anomalies
which in modern times distinguish the func-
tions of this venerable and useful institution.
Those who are judges of fact, and belong
presumably to the same social class of the
community as the prisoner before them,
should also, in justice, be the best judges
of the degree of culpability attached to the
commission of any particular crime. With
the minimum and maximum of punishment
which the law permits placed before them,
the jury who find the accused guilty should
in equity determine the sentence to be pro-
nounced. Modern codes relegate this power
in criminal cases — not in civil causes — to the
judge. The results are extremely curious ;
were it not for the gravity of the wrong
inflicted, one might add diverting. In most
Jurisdiction of the Courts. 55
ancient penal systems the judge was regarded,
and very properly, as competent to decide
upon matters of fact as well as in questions of
law. But the right to apportion punishment
was not always conceded to him. In the
best days of the Roman Republic the Questio
perpetua presided over the trial of a criminal ;
but the jury — the citizen judges, numbering
thirty-two, or forty, or ninety, or even a
hundred — convicted the prisoner and pro-
nounced the sentence of death. The pre-
siding magistrates were in reality but legal
assessors or advisers. In the Hebrew sys-
tem such division of labour was rendered
unnecessary. The members of a Synhedrin
were in themselves the judges as well as the
jury; and the characteristic religious bias
of every Israelite, the desire to emulate the
middath rakhamin — the heavenly attribute
of mercy — was of obvious effect. It led
them in every instance to place the most
favourable construction possible upon the
conduct of an erring brother.
56 Criminal Code of tJte Jews.
CHAPTER V.
THE RULES OF EVIDENCE.
THE rules of evidence, as formulated in
the Talmud, are of a remarkable character.
They are in most respects unlike those of
any ancient legal code ; and are diametri-
cally opposed to our modern English prac-
tice in every important particular. The
primary object of the Hebrew judicial sys-
tem was to render the conviction of an inno-
cent person impossible. All the ingenuity of
the Jewish legists was directed to the attain-
ment of this end. Everywhere the punish-
ment of the guilty seems subordinated to this
principal consideration. The credibility of
witnesses must be established beyond doubt ;
their impartiality must be placed above sus-
picion ; the likelihood of prejudice animating
The Rules of Evidence. 57
any person testifying against a prisoner must
be carefully sought out The admissibility
of evidence was determined by a series of
stringent regulations disqualifying in each case
a number of individuals from coming forward
as witnesses. No man could incriminate him-
self ; nor could a wife give evidence against
a husband. (Among the Hebrews a be-
trothed girl was regarded by the law as a
married woman.) On the other hand, a
prisoner was not debarred from testifying
in his own favour ; any argument he wished
to urge, irrespective of its legal worth, was
heard by the judges. Relatives — including
many allied by marriage, and nearly all
those allied by blood — were incompetent to
appear as witnesses. Grandchildren formed,
however, an exception to this rule. Those
standing in loco parentis to the accused at
the time the alleged offence was committed
or when the trial commenced ; the shushbin
— best man, groomsman — during the seven
days of marriage ; an enemy, i.e. one who
58 Criminal Code of the Jews.
had not spoken to the prisoner for a period
of three days, owing to dislike or hatred or
on account of differences ; a creditor ; any
person to whom the accused had lent
money ; all who publicly and derisively —
Vfrase — acted in contravention of the Mo-
saic laws regarding food, cleanliness, and
decency ; all such as had been convicted
of attempting to wrong or defraud a neigh-
bour (the Talmud regards such persons as
worse than those who sin against Heaven
only) — these, and all others who were dis-
qualified from acting as judges in a cause,
were declared incompetent to appear as wit-
nesses. The rabbins carefully made allowance
for human weakness and natural promptings.
They did not expose relatives to the tempta-
tion of violating the sanctity of their oath ;
and they spared father, or son, or brother
the pain of being compelled to speak the
damning word which should consign, perhaps
to death, one near and dear to them. Thus,
the partiality of friends, the affection of
The Rules of Evidence. 59
relatives, or the enmity of opponents, could
in no wise affect the issues of a trial.
The mode of examining witnesses, as
prescribed by the Hebrew code, is probably
without a parallel. It consisted, in the ab-
solutely essential portion, of a series of
leading questions propounded by the judges.
These questions were fixed by law, and no
deviation was permissible. There were two
sets of questions : the first, known as the
Hakirah, investigation as to time and place ;
the second, termed Bedikah, investigation as
to relevant circumstances and corroborative
facts. The fundamental principle of the
Jewish law of evidence was that the testi-
mony against a prisoner should, if it be false,
admit of being overthrown by proving an
alibi against the witness, entailing upon the
perjurer the penalty of death in all purely
criminal cases. This condition was abso-
lutely essential. It is clear that the only
statements capable of being contradicted in
this manner must confine themselves to de-
60 Criminal Code of the Jews.
tails as to time and place ; that is, the evi-
dence must simply declare that the witness
saw the crime committed at a certain hour,
on a certain day, in a specified place. Such
testimony only was considered satisfactory.
The Hakiroth consisted of seven questions
— never more, never less — put to each wit-
ness privately, and in the absence of other
witnesses.
The appointed members of the Synhe-
drin, as a necessary preliminary, asked the
person about to give evidence whether he
actually saw the accused commit the crime
with which he was charged. On receiving
an answer in the affirmative the Hakiroth
were put in the following order: — (i) 'In
what Schemitah' — cycle of seven years,
reckoning from the last Jubilee — ' was the
offence perpetrated ? ' (2) 'In what year
of the Schemitah?' (3) 'In what month
of the year ? ' (4) ' On what day of the
month ? ' (5) ' On what day of the week ? '
(6) ' At what hour of the day ? ' and (7)
The Rules of Evidence. 61
'In what place?' Replies to these seven
questions were indispensable and imperative.
Failure to answer any one rendered the tes-
timony null and void. The responses thus
elicited were regarded as furnishing valid
and trustworthy evidence ; if untrue it could
be falsified by proving an alibi against the
witness. Any one of these seven questions
unanswered, or unsatisfactorily answered,
would preclude the possibility of adopting
this course in cases where perjury had been
committed.
To procure the condemnation of an ac-
cused person, two competent witnesses, in-
dependent and not related, were absolutely
necessary. Each must have satisfactorily
replied to the Hakiroth. Agreement of the
evidence offered by each was of course a sine
qua non. To provide, however, for mistakes
into which a witness might unintentionally
fall, a special series of rules was framed as
to questions 6 and 4. These will presently
be indicated. From the nature of the
62 Criminal Code of the Jews,
Hakiroth it follows that to convict a criminal
it was necessary that two competent persons,
to all appearances unprejudiced and impar-
tial, should have detected the offender in
ftagrante delicto.
The second set of questions, the Bedi-
koth, consisted of inquiries referring to cir-
cumstances connected with the commission
of the crime. They were not, like the
Hakiroth, limited to number. The Synhe-
drin might ask any number, provided they
were relevant ; subject, however, to the
following conditions : No evidence as to
the prisoner's antecedents was admitted ; no
previous convictions might be urged against
him ; no proofs of character, good or bad,
were allowable. Extenuating circumstances
were noted, but only by the judges. The
Bedikoth were always strictly confined to
details connected with the actual perpetra-
tion of the crime. For instance, in a charge
of murder the judge would ask whether the
witnesses had been acquainted with the per-
The Rides of Evidence. 63
son assassinated ; if they had cautioned the
prisoner as to the gravity of the offence ; if
they had warned him of the punishment to
which he was liable upon conviction ; whether
they thought the accused was himself cogni-
zant of the serious nature of his crime ; with
what weapon the deceased had been slain.
In cases of Paganism the inquiries would be
what divinities the culprit had worshipped ;
what acts constituted the worship ; had he
prostrated himself before the images ; had
he offered incense to the strange gods ; had
he immolated sacrifices in their honour, or
poured out libations upon the forbidden
altars. In no case was a witness permitted
to . make a statement for or against the
accused. The evidence was strictly con-
fined to replies elicited in response to lead-
ing questions from the judges. Hearsay and
presumptive evidence was rejected as worth-
less ; and circumstantial evidence was inad-
missible. In the Bedikoth it was of course
requisite that the statements of the witnesses
64 Criminal Code of the yews.
should agree in all essential details ; but it
was enough if the main facts coincided. If,
for instance, a witness in a case of murder
testified that the criminal was attired in a
black coat, and another asserted he was at
the time dressed in a white coat, their evi-
dence was admitted. If, however, one said
the murder was committed with a spear and
the other with a knife, their evidence was
rejected ; there was a material contradiction
of a material fact. So, too, in a civil cause,
if one witness swore that a certain sum of
money was contained in a blue bag, and
another said it was a red bag, the testimony
was good. If, however, one asserted the
sum to have been a thousand pieces of silver
and the other two thousand pieces, the evi-
dence of both was set aside. Probability
was never considered by Hebrew judges.
The Jewish lawyers, moreover, held fast by
the Mosaic injunction that two or more
credible witnesses were required in every
case. Where a marked discrepancy was
The Rules of Evidence. 65
apparent in the testimony of two persons,
one account alone could be deemed trust-
worthy. There was, as the rabbins reasoned,
but one credible witness in such t a case ; and
the Mosaic condition was not fulfilled. The
examination of witnesses was conducted in
private by judges deputed for that purpose.
All testimony not in accordance with the
laws of evidence was immediately declared
inadmissible ; it could not be deposed to in
full court. Hence, in all cases where dis-
crepancies were discovered during the pre-
liminary investigation, the statements of the
witnesses were not submitted to the judges.
There was therefore no possibility of the
Synhedrin being prejudiced or influenced by
any testimony that failed to satisfy the rules
of evidence.
We have said that in the case of the
Hakiroth — questions as to time and place
— it was indispensable that the statements
^.furnished by two witnesses should coincide.
Discrepancies in the respective answers given
F
66 Criminal Code of the Jews.
in reply to any one question would neces-
sarily invalidate the whole of the evidence
brought forward. But such non-agreement
in the responses elicited must have been
sufficiently marked to constitute a definite
disaccord, an unmistakable contradiction.
But, of course, the rabbins were aware
that stupidity or unintentional error might
account for trifling differences of statement.
That any such unimportant variations should
not bring about a miscarriage of justice, cer-
tain rules were framed applicable to questions
4 and 6, regarding the day of the month and
the hour of the day. Among the Hebrews
the number of days in a month was not fixed.
Sometimes a lunar month consisted of twenty-
nine, occasionally of thirty days. When the
new moon was announced the public were
likewise informed how many days the month
would include. If a man happened to be
absent when the hodesh — new moon — was
proclaimed, he might easily go astray in
his reckoning. He might have forgotten
The Rules of Evidence. 67
whether the preceding month consisted of
twenty-nine or of thirty days ; as a result
he might be in error to the extent of a day.
Accordingly the law enacted that, provided
the replies of the witnesses coincided in all
other respects, a day's difference in the two
answers to question 4 should not invalidate
the evidence. If, therefore, one asserted
that the crime was committed on the first
of the month and the other on the second,
the testimony held good. But if the former
said the second of Nissan and the latter the
fourth of Nissan, the evidence was altogether
void. A man, urges one of the rabbins,
might perhaps make a mistake two months
running. To this, however, the majority
demur. A conscientious person was not to
be lightly suspected of having on two suc-
cessive occasions neglected the performance
of what was regarded as a religious duty.
Again, a mistake might easily be made when
replying to question 6, that is regarding the
F 2
68 Criminal Code of the Jews.
hour of the day. The sun was the town-
clock in those times ; an error in respect of
an hour, or even two, was by no means im-
possible. Accordingly, the rules of evidence
permitted of a difference or discrepancy of
two hours in the respective answers to the
Hakiroth. But this was not permissible if
the two hours specified were between what
to moderns would be eleven in the morning
and one o'clock in the afternoon. Here
such non-agreement was not allowable. No
Eastern was likely to mistake the position
of the sun about noon to the extent of two
hours.
Such, briefly summarised, are the prin-
cipal injunctions of the Talmud regulating
the admissibility of evidence and the quali-
fications of witnesses, and specifying the
mode of examination. They were calculated
to simplify procedure, expedite justice, pre-
vent undue pressure of judicial authority,
and, more than all, render impossible those
' hard constructions and strained inferences '
The Rules of Evidence. 69
of which Bacon so eloquently bids judges
beware.
A sketch of the proceedings in a capital
trial will illustrate the practical application
of the laws we have already described.
7o Criminal Code of the Jews,
CHAPTER VI.
FORM OF TRIAL IN CAPITAL CASES.
A CAPITAL trial was conducted with all the
solemnity of a religious ceremony. The
exercise of judicial functions was at all times
regarded as a sacred privilege ; and the
responsibility incurred in criminal cases was
ever present to the Hebrew mind. ' A
judge/ says the Talmud, 'should always con-
sider that a sword threatens him from above,
and destruction yawns at his feet.' Rising
betimes in the morning, the members of the
Synhedrin assembled after prayers in the
Hall of Justice. Pending the arrival of the
culprit and the preparations for the trial, they
commented among one another on the serious
nature of the duties they were called upon to
discharge. The judges were so arranged as
Form of Trial in Capital Cases. 7 1
to sit in a semicircle. Immediately in front
of them were three rows of disciples. Each
row numbered three -and -twenty persons.
Thus every judge was ^assisted by three
juniors. These disciples were not young
and inexperienced students, but were many
of them in no wise inferior to the members of
the court itself. Any vacancies in the first
row were filled up from the second ; any
required in the second were supplied from
the third rank ; and the third was recruited
from the number of learned men to be found
in every place having a permanent Synhedrin.
Three scribes were present ; one was seated
on the right, one on the left, the third in the
centre of the hall. The first recorded the
names of the judges who voted for the acquit-
tal of the accused, and the arguments upon
which the acquittal was grounded. The
second noted the names of such as decided
to condemn the prisoner and the reasons
upon which the conviction was based. The
third kept an account of both the preceding,
72 Criminal Code of the Jews.
so as to be able at any time to supply omis-
sions or check inaccuracies in the memoranda
of his brother reporters. The culprit was
placed in a conspicuous position, where he
could see everything and be seen by all.
Opposite to him and in full view of the court
were the witnesses. Thus constituted and
arranged, the Synhedrin commenced its in-
vestigations.
The procedure in a capital trial differed
in many important respects from that adhered
to in ordinary cases. In an ordinary case the
discussions of the judges commenced with
arguments for or against the accused ; in a
capital charge it could only begin with an
argument urged in behalf of the prisoner. In
an ordinary case a majority of one was suffi-
cient to convict ; in a capital charge a majority
of one could acquit, but a majority of two
was necessary to condemn. In ordinary cases
judgment pronounced could always be an-
nulled upon discovery of an error ; in capital
cases the decision was irrevocable once the
Form of Trial in Capital Cases. 73
accused had been declared innocent. In
ordinary cases the disciples present could
offer opinions for or against either party ; in
a capital trial they were only permitted to
suggest arguments in favour of the culprit.
The judges in ordinary cases could change
their opinion prior to giving the final and
collective decision ; but in a capital charge
they were only permitted to change if at first
they had intended to vote for a conviction.
An ordinary trial, if commenced in the morn-
ing, might be continued during the evening ;
in a capital issue the proceedings must cease
and the sitting be suspended at sunset. An
ordinary charge could be heard and adjudi-
cated upon in one day ; in a capital case a
prisoner could be acquitted the same day as
he was tried, but sentence of death could not
be pronounced until the following afternoon.
Lastly, in ordinary cases, the judges voted
according to seniority, the oldest commencing ;
in a capital trial the reverse order was fol-
lowed. That the younger members of the
74 Criminal Code of the Jews.
Synhedrin should not be influenced by the
views or arguments of their more mature,
more experienced colleagues, the junior judge
was in these cases always the first to pro-
nounce for or against a conviction.
As soon as the Synhedrin was ready the
examination of the witnesses commenced.
The first who was to give evidence was taken
into an adjoining chamber and carefully ad-
monished. He was asked if he had not per-
chance founded his conviction of the prisoner's
guilt upon probability, on circumstantial proof,
or by hearsay ; whether he was not influenced
in his opinions by persons whom he regarded
as trustworthy and reputable. Did he know
he would be submitted to a searching and
rigorous examination ? and was he acquainted
with the penalty entailed by perjury ? The
most venerable of the judges then addressed
the witness, solemnly adjuring him to truth-
fulness. ' Do you know,' said the rabbin,
1 the difference between a civil and a criminal
case ? In the former case an error is always
Form of Trial in Capital Cases. 75
reparable ; restitution can always be made.
But in the latter an unjust sentence can never
be atoned for ; and you are responsible for
the blood of the condemned and all his pos-
sible descendants. For this reason God
created Adam — whose posterity fills the
earth — alone and sole, in order that we might
understand that he who saves a single soul is
as though he saved an entire world ; and he
who compasses the destruction of a single
life is as though he had destroyed a world.
That the Almighty formed but one man in
the beginning is moreover intended to teach
us that all men are brethren, and to prevent
any individual from regarding himself as
superior to a person belonging to another
nation. Nevertheless,' continued the judge,
' if you witnessed the crime and conceal the
facts you are culpable. Have no fear there-
fore of the responsibility you incur ; and
remember that as a city rejoiceth when the
righteous succeed, so doth a town shout when
they that wrought wickedness are punished.'
76 Criminal Code of the yews.
Upon the conclusion of this exhortation the
examination commenced. The Hakiroth,
questions as to time and place, were put to
each of the witnesses, and subsequently the
Bedikoth, inquiries relative to the commission
of the crime. As soon as the answers con-
stituting the evidence against the prisoner
had been received they were submitted to
the Synhedrin. The consideration of the
case was thereupon proceeded with. As we
before pointed out, the rebutting testimony
could only be directed against the Hakiroth
by proving an alibi against one or both of
the witnesses. If the accused succeeded in
so doing he was of course at once acquitted.
If there was a marked discrepancy in the
Bedikoth — sufficient, in fact, to render the
statements of the witnesses contradictory —
the trial equally of course immediately termi-
nated. There would be, under the circum-
stances named, no evidence legally admissible ;
no valid testimony to lay before the Synhedrin.
Supposing, however, the facts elicited from
Form of Trial in Capital Cases. 77
the witnesses were such as could be brought
into court in support of the charge, then the
tribunal commenced the discussion prelimi-
nary to voting. "V-
The deliberations could only begin with an
argument in favour of the accused. Nothing
was therefore urged until one of the judges
found some fact or facts telling against the pro-
secution. The member of the Synhedrin then
rose and, alluding to the circumstances, said :
' According to such and such a statement, it
appears to me the prisoner must be acquitted.'
The discussion thereupon became general.
Every item of evidence was carefully over-
hauled ; each of the answers given by the
witnesses was subjected to minute criticism.
Apparent inconsistencies were dilated upon,
and extenuating facts pleaded. The culprit
himself was permitted to urge anything in his
own favour or against the evidence of the pro-
secution. If a disciple found a cogent or valid
argument on behalf of the prisoner, he was
placed among the judges, and regarded as a
78 Criminal Code of the Jews.
member of the court during the entire day.
If, on the other hand, one of the disciples
noticed anything calculated to injure the
defence, he was not permitted to call atten-
tion thereto. As soon as the discussion ter-
minated the preparations for recording the
votes commenced. The scribes were ready,
and each judge, beginning with the youngest,
pronounced his decision for or against the
accused. At the same time each stated the
facts upon which his conclusion was grounded.
The observations of the members were care-
fully recorded and preserved. As soon as
the whole of the Synhedrin had voted, the
numbers were announced. If eleven con-
victed and twelve acquitted, the prisoner was
without delay discharged, a majority of one
voice being sufficient for this purpose. If
twelve convicted and eleven acquitted, the
accused could not be condemned, a majority
of at least two being required. In such a
case the following expedient was adopted :
two additional judges were added, these being
Form of Trial in Capital Cases. 79
selected from the first row of disciples. Voting
then recommenced. If a majority of two
against the prisoner was thus obtained he
was convicted. If not, ^the process of in-
creasing by twos the number of the Synhedrin
continued until the requisite preponderance
was gained. Should the tribunal by this
means come to consist of seventy-one mem-
bers, of whom thirty-six voted for a conviction
and thirty-five against, the matter was re-
argued until one of the former gave way and
declared in favour of an acquittal. Should
the six-and- thirty adhere to their opinions
the prisoner was discharged. If at the original
voting thirteen members of the Synhedrin
decided to convict, or if after the subsequent
additions a majority of two was obtained in
favour of the same course, the accused was
found guilty. Sentence, however, could not
be pronounced until the following afternoon.
The sitting was therefore suspended until
next morning.
In such cases, that is, when sentence of
8o Criminal Code of the yews.
death appeared inevitable, the Synhedrin ad-
journed immediately the majority that deter-
mined a conviction was announced. Slowly
the members quitted the hall wherein the trial
had been conducted. Gathering in knots of
three and more, they remained for some little
time in the street discussing among them-
selves the misfortune impending over their
city — for as such all Hebrews regarded the
execution of a fellow man. Gradually the
groups broke up ; the judges proceeded to
their homes. They ate but a small quantity
of food, and were not permitted to drink
wine during the remainder of the day or
evening. After sunset they made calls upon
each other, again debating the various argu-
ments adduced during the trial. At night
each retired to his chamber and gave him-
self up to meditation ; or so it was believed.
The knowledge that a life — a life declared
by their traditions to be equal to a world —
depended upon their verdict would lead them
to ponder upon the judgment of the morrow.
Form of Trial in Capital Cases. 8 1
There was yet time to reconsider the sentence,
time to recall a decision that a few hours
would render eternally irrevocable. Rising
early in the morning, they returned to the
house of justice. Not one was permitted to
partake of food. The day that condemned an
Israelite to death was a fast-day for his judges.
Meeting in the hall of assembly the members
of the Synhedrin with their disciples were
arranged as on the preceding morning. The
witnesses were again present ; the criminal
was brought in. The scribes seated them-
selves, and the proceedings commenced. One
by one each judge in succession pronounced
his decision ; again each repeated the argu-
ments upon which it was based. The scribes,
tablet in hand, compared the statements now
made with those recorded on the previous
day. If any member of the tribunal, voting
for a conviction, founded his judgment upon
reasoning materially opposed to that he be
fore urged, his verdict was not accepted.
One who had resolved to acquit on the pre-
G
82 Criminal Code of the Jews.
ceding day was not permitted to change his
determination. But any one who had decided
to convict might, upon furnishing the Synhe-
drin with the arguments inducing him so to
do, vote on this occasion in favour of an ac-
quittal. Again the number for and against
the accused was announced. Still the sen-
tence was deferred. The prisoner might
bethink himself of some valid plea in extenu-
ation of his crime ; unexpected witnesses
might be forthcoming ; the Synhedrin might
produce some favourable arguments. Slowly
the sun gained the meridian. Still the court
sat ; none thought of quitting the hall of
judgment. Gradually the sun declined and
evening drew nigh. There was to be no in-
terval between sentence and execution ; the
hour that heard the doom pronounced would
see it carried into effect. Sunset was the time
fixed for both. As the afternoon wore on
the doors of the court were opened. A man
stationed himself at the gate, carrying in his
hand a flag. In the distance was a horse-
Form of Trial in Capital Cases. 83
man, so placed as to perceive readily the
least movement or agitation of the bunting.
With a solemnity becoming the occasion, the
Synhedrin, after praying that they might
commit no sin thereby, decreed the punish-
ment of death. Accompanied by two rab-
bins, the convict was led to the place of exe-
cution without the walls. Hope was not even
yet abandoned. If one of the judges be-
thought him of an argument in favour of the
criminal the flag at the door was raised and
the mounted messenger prepared for such
an emergency galloped forward to stop the
execution. If the culprit requested to be
reconducted to the court, he was taken back
as often as he furnished any valid excuse.
The Synhedrin sat until the hazan — mes-
senger of the court — returned with a noti-
fication that the condemned man was no
more. Again uttering a prayer that the
judgment that day pronounced might not have
been in error, the members rose and silently
quitted the hall of justice.
G 2
84 Criminal Code of the Jews.
CHAPTER VII.
THE VARIOUS METHODS OF EXECUTION.
THE rabbins were the first among ancient
legists to render the infliction of the death-
penalty as painless as possible. The manner
in which the sentence of the law in capital
cases was carried into effect was regulated by
a series of enactments. Every detail was
preordained. The place of execution was
always beyond the limits of the town ; gener-
ally at some distance from the hall where
judgment had been pronounced. There were
two reasons for this — first, that a certain in-
terval of time should elapse between sentence
and execution so as to permit the court to
examine any evidence that might yet be forth-
coming ; and, secondly, that the Synhedrin
should not witness the execution. As soon
The Various Methods of Execution. 85
as the punishment of death was decreed, the
criminal was conducted from the court. Two
elders, the witnesses, and the officers of the
tribunal accompanied him. In advance of
the cortege walked an attendant, proclaiming
aloud, ' So-and-so is to be executed for such-
and-such an offence ; so-and-so are the wit-
nesses ; the crime was committed at such a
place, on such a day, at such an hour. If any
person can urge anything against the inflic-
tion of the punishment, let him go to the
Synhedrin now sitting and state his argu-
ments.' Thus the party proceeded through
the town. Arrived within six yards of the
place of execution the sages who were with
the condemned man pressed him to confess his
crime. They told him that whosoever makes
confession is privileged to share in the olam
haba — future existence ; since death was an
expiation for all iniquities. If he refused to
acknowledge his guilt he was asked to say,
' May my death prove an atonement for all
my transgressions.' He was then conducted
86 Criminal Code of the Jews.
to within four yards of the place where the
sentence was to be carried into effect. The
death-draught was here administered. This
beverage was composed of myrrh and frank-
incense (lebana), in a cup of vinegar or light
wine. It produced in the convict a kind of
stupefaction, a semi-conscious condition of
mind and body, rendering him indifferent to
his fate and scarcely sensible to pain. The
drink was — in Jerusalem — provided by the
women, who considered this one of the great-
est mitzvoth — meritorious deeds. In pro-
vincial towns the local communal authorities
were required to furnish the criminal with
the draught ; the ingredients were purchased
at the public expense. As soon as the cul-
prit had partaken of the stupefying draught
the execution took place.
In accordance with the Mosaic code four
kinds of death were inflicted, each appro-
priate to a distinct series of crimes. These
were stoning, strangling, burning, and decapi-
tation. Nothing can be more absurd than
Tke Various Methods of Execution. 87
the notions generally current respecting the
manner in which these punishments were
carried out among the Jews. The stoning of
the Bible and of the Talmud was not, as
vulgarly supposed, a pell-mell casting of
stones at a criminal ; the burning had nothing
whatever in common with the process of con-
suming by fire a living person as practised
by the churchmen of the Middle Ages ; nor
did the strangling bear any resemblance to
our English mode of putting criminals to
death.
The stoning to death of the Talmud was
performed as follows : — The criminal was
conducted to an elevated place, divested of
his attire if a man, and then hurled to the
ground below. The height of the eminence
from which he was thrown was always more
than fifteen feet; the higher, within certain
limits, the better. The violence of the con-
cussion caused death by dislocating the spinal
cord. The elevation was not, however, to be
so high as to smash or greatly disfigure the
88 Criminal Code of the Jews.
body. This was a tender point with the
Jews ; man was created in God's image, and
it was not permitted to desecrate the temple
shaped by Heaven's own hand. The first of
the witnesses who had testified against the
condemned man acted as executioner, in ac-
cordance with Deut. xvii. 7. If the convict
fell face downward he was turned on his
back. If he was not quite dead, a stone, so
heavy as to require two persons to carry it,
was taken to the top of the eminence whence
he had been thrown ; the second of the wit-
nesses then hurled the stone so as to fall
upon the culprit below. This process, how-
ever, was seldom necessary ; the semi-stupe-
fied condition of the convict and the height
from which he was cast ensuring in the
generality of cases instant death.
The bodies of those condemned for blas-
phemy or idolatry were subsequently hung
upon a gallows until dusk. Immediately
after execution the corpse was interred. Out-
side every town there were two cemeteries
The Various Methods of Execution. 89
for criminals — one for those sentenced to be
stoned or burned ; one for those decapitated
or hanged. As soon as the flesh had disap-
peared the skeleton could be removed to the
family burying-place. A few days after an
execution the friends and relatives of the
dead man — he was no longer regarded as an
offender — called upon the judges who had
tried him. This was a tacit acknowledgment
that the punishment had been justly awarded,
and that those charged with the administra-
tion of the law were regarded with no re-
vengeful feelings by the family and connec-
tions of the unfortunate man.
Death by stoning was the penalty of the
following crimes : adultery of an unnatural
character ; blasphemy and any form of idola-
try ; public profanation of the Sabbath ; curs-
ing parents (which must include blasphemy) ;
the practice of Ob and ydoni — presumably a
form of idolatrous sorcery ; criminal assault
upon a Na'arah (a young girl not yet of full
age — one of mature years is termed in the
90 Criminal Code of the Jews.
Talmud bagrotti); any person seducing another
to idolatry ; and a stubborn and rebellious
son. Some other offences specified in the
Pentateuch were also punished by stoning.
A criminal sentenced to death by burning
was executed in the following manner. A
shallow pit some two feet deep was dug in
the ground. In this the culprit was placed
standing upright. Around his legs earth was
shovelled and battered firmly down until he
was fixed up to his knees in the soil. Movement
on the part of the condemned person was of
course impossible ; but care was taken that the
limbs should not be painfully constrained. A
strong cord was now brought, and a very soft
cloth wrapped round it. This was passed once
round the offender's neck. Two men then
came forward ; each grasped an end of the
rope and pulled hard. Suffocation was im-
mediate. As the condemned man felt the
strain of the cord, and insensibility super-
vened, the lower jaw dropped. Into the
mouth thus opened a lighted wick was quickly
The Various Methods of Execution. 9 1
thrown. This constituted the burning. After
death ensued the body was buried in the
cemetery for criminals. This manner of
death was prescribed by an injunction of the
Pentateuch for those committing adultery in
certain specified cases — notably where the
married daughter of a priest was found guilty
of the crime.
Decapitation was performed by the Jews
after the fashion of the surrounding nations.
It was considered the most humiliating, the
most ignominious and degrading death that
any man could suffer. It was the penalty in
cases of assassination and deliberate murder.
It was incurred by those who wilfully and
wantonly slew a fellow-man with a stone or
with an implement of stone or iron. It was
likewise the punishment meted out to all
persons who resided in a town the inhabitants
of which had allowed themselves to be se-
duced to idolatry and paganism.
Strangulation was a form of death by
suffocation. It was effected as in burning.
92 Criminal Code of the J ews.
The culprit stood up to his knees in loose
earth. A soft cloth containing a cord was
wound once round his neck. The ends being
tightly pulled in opposite directions, life was
soon extinct. This mode of death was the
punishment of one who struck his father or
his mother ; of any one stealing a fellow-
Israelite ; of a false prophet; of any one
committing adultery (as we understand this
crime nowadays) ; and of the elder or pro-
vincial judge who taught or acted contrary to
the decision of the Great Synhedrin of Jeru-
salem.
It has before been said that in certain
cases the bodies of malefactors were hung
after execution. The reverence for the dead
characteristic of the Rabbins, is nowhere
more markedly apparent than in the manner
in which this Mosaic ordinance was carried
out. A beam was embedded endwise in the
ground. From it a branch of wood projected
like an arm. This extended above the place
where the corpse was lying. The two hands
The Various Methods of Execution. 93
of the deceased were tied together, and the
culprit thus suspended. According to an ex-
press injunction of the Pentateuch, the body
of a criminal was not permitted to hang dur-
ing the night ; it had to be removed at sun-
set. Now sentence was invariably pro
nounced towards evening, and execution im-
mediately followed. In any case, therefore,
the corpse could not have been suspended for
many minutes. The Talmud however further
enacted that whenever the body of a criminal
was to be subjected to the indignity of expo-
sure in this fashion two men were to undertake
the duty. One was to suspend the deceased
on the extemporised gallows, the other to
take down the corpse ; and while the former
was engaged in tying the last cord by which
the malefactor was to depend from the pro-
jecting limb, the latter was to commence to
unbind the first. The body was thus but a
moment exposed to the indignity, and yet
compliance was made with the letter of the
law. Under no circumstances was the corpse
94 Criminal Code of the Jews.
of a criminal suffered to remain unburied
until the day after death.
The arba mitkoth beth-din — the four
deaths decreed by the courts of justice — as
herein described, are the only modes of
execution in accordance with Hebrew law.
Crucifixion, as practised by the Romans and
Carthaginians, is unknown to the Scripture —
equally unknown to the penal enactments of
the Talmud. Horrible and unnatural punish-
ments, such as those prescribed by the
Egyptian laws in cases of parricide and se-
duction with violence, were unknown to the
Jews. Boiling criminals alive in oil, as prac-
tised by more than one ancient nation ; bury-
ing alive, not by any means unknown to the
Romans — nay, the disembowelling and quar-
tering of our last-century executions — would
have horrified a Jewish Synhedrin, who
would have regarded such outrages upon the
dignity of man's body as, in their own expres-
sive phrase, a hillul kaskem, a public desecra-
cration of the Godhead. ' We are enjoined
The Various Methods of Execution. 95
to love our neighbour as ourselves, says Nah-
man in the name of Rabbah, the son of
Abouhou, 'and therefore it is our bounden
duty always to endeavour to mitigate by
every means possible the sufferings of a fel-
low-creature condemned to death.'
g6 Criminal Code of the Jews.
CHAPTER VIII.
WHAT CONSTITUTED MURDER — ADULTERY AND ITS
PUNISHMENT — IDOLATRY.
THE whole of the crimes already enumerated
as entailing the penalty of death are practi-
cally but varieties of three offences only —
murder, adultery, idolatry. To these must
be added the case of an elder who taught
contrary to the judgment of the Great Syn-
hedrin of Jerusalem. Murder, the first of
these and the most serious everywhere, is
carefully discriminated in the Talmud. Under
certain conditions only was it punished with
death. To explain this fully we must ask
the question, What constitutes murder ac-
cording to the Hebrew penal code ?
To constitute murder it was necessary to
prove malice and intent. In the words of
the Bible the criminal must have ' hated his
Murder, Adidtery, and Idolatry. 97
neighbour from heretofore ;' and as regards
the commission of the offence, he must have
' lain in wait ' for his victim in order to slay
him. The malice and s intent were to be
actual and demonstrable. Neither of these
essential conditions was to be presumed or
inferred from the mere circumstance of an
offence having been perpetrated. The En-
glish legal figment of constructive malice,
like constructive murder, was undreamed of
by the Hebrew legists. To convict capitally,
as our criminal code can, a man who shoots
at a fowl perched on a hedge, and acci-
dentally kills some person hidden behind it,
would have seemed to the rabbins an act of
the grossest inhumanity. Only when the
crime was assassination, deliberate and pre-
meditated, was sentence of death pronounced.
Before proceeding further it is necessary
to refer here to the remarkable enactment of
the Talmud, known as the ' preliminary cau-
tion.' As already pointed out, this ordinance
of the Mishnic doctors required that, in order
H
98 Criminal Code of the yews.
to secure a conviction in certain cases, proof
had to be forthcoming that the witnesses had
warned the accused prior to the commission
of the offence with which he was charged,
and informed him of the gravity of the crime
he contemplated and the penalty attached to
its perpetration. M. Rabbinowicz, as we be-
fore observed, regards this injunction of the
rabbins as designed to abolish altogether the
penalty of death. He thinks that in a case
of assassination failure of evidence to prove
that the culprit had received this ' preliminary
warning' would constitute one of the ex-
tenuating circumstances which evitate capital
punishment. We venture to think that M.
Rabbinowicz misapprehends the real pur-
pose and intent of this curious proviso.
In the first place, an important beraitha
declares in the words of Josse, the son of
Judah, that the only object of this enactment
was to prevent the condemnation of a person
ignorant of the gravity of the offence he had
committed. He adds that in the case of a
Murder, Adultery, and Idolatry. 99
properly instructed man, proof of the ' pre-
liminary caution ' was not necessary in order
to procure a conviction. Again, the Talmud
emphatically declares that an acquittal con-
trary to an explicit injunction of the Penta-
teuch, or written law, had to be annulled.
Now, the Mosaic code constantly assumes
that every man is cognisant of the penal pro-
visions of the Bible. The Talmud always
acts upon this assumption ; notably in the
enactments respecting the contumacious
elder. Every Jew is supposed to know
what constitutes murder, and what is the
penalty incurred thereby. The Pentateuch
says nothing of any preliminary caution
whatever. In a case of premeditated and
wilful assassination, proved by witnesses in
accordance with the rules of evidence, an
acquittal grounded upon this provision of the
rabbins only, would be manifestly opposed to
the letter and spirit of the written law. Such
a judgment would therefore, as the beraitha
expressly states, be illegal and void. The
H 2
ioo Criminal Code of the Jews.
real object and intention of the preliminary
warning will be presently indicated.
Ordinary cases of murder (i.e. not assassi-
nation under the circumstances above men-
tioned) were punished with imprisonment for
life or perpetual seclusion. Here the absence
of long-harboured malice, nourished enmity,
and premeditated design constituted valid
arguments against a capital conviction. As-
sassination, clearly proved, but not witnessed
by persons qualified to give valid evidence,
was also punishable in the same way. In
every charge of murder (common homicide)
it was indispensable to prove that the con-
duct or action of the culprit was the direct
cause of death. The intent of the deed, the
design of the prisoner at the moment of com-
mitting the crime to take away life, must be
incontrovertibly demonstrable and clearly
established. As a contributory, or as one
among many others who slew a man, he
could never be convicted of murder. For
instance, a man and his neighbour quarrelled
Murder, Adultery, and Idolatry. 101
and fought. The former threw his opponent
into a ditch. There was a ladder in it at the
time, by which any one could have got out.
The man above walked away. Another passed
by, and, seeing a ladder leading into the
ditch, removed it. The person below could
not escape, and perished in consequence.
Under such circumstances, a charge of mur-
der could not be maintained against the man
who had thrown the deceased person into
the fosse where he died. This leading case
embodies the principle throughout adhered
to by Hebrew legists. Constructive murder
was unknown to the Jewish judges. This
palpable absurdity still disfigures the pages
of our English code. Five men are engaged,
say, in the unlawful enterprise of robbing an
orchard. The owner or one of his watchmen
enters. A squabble ensues. One of the
thieves throws a stone, which accidentally in-
jures the owner or the watchman, who dies
in consequence of the hurt received. The
man who cast the missile and unintentionally
IO2 Criminal Code of the Jews.
caused the mischief is perhaps known. Yet,
despite this fact, the whole five could be found
guilty of murder, and hanged ! Such a con-
viction was impossible according to the Tal-
mudic laws. If three, five, or any number of
men attacked a single person and slew him,
only the assailant whose hand actually in-
flicted death could be found guilty of murder.
Where, on the other hand, the man who
actually killed the victim could not be distin-
guished among the others, all of them were
imprisoned for a fixed period, and could be
compelled to support the family of the de-
ceased person. The perpetual incarceration
of a murderer had nothing in common with
the modern systems of penal servitude. M.
Rabbinowicz, with much discrimination, con-
trasts the seclusion of a convict as ordained
by the Hebrew code for the protection of
society and such systems of life-long incar-
ceration as prevail in our own time. The
mere deprivation of liberty was considered
by the Rabbins the severest punishment a
Murder, Adultery, and Idolatry. 103
human being could undergo. The penalty of-
murder is, in the characteristic phrase of the
Talmud, that the murderer ' be put in prison ;
and they give him the bread and water of
misery.'
Adultery was, as stated, punishable with
death. To secure a conviction, it was impe-
rative that evidence be adduced conclusively
showing that two witnesses had cautioned
the accused of the gravity of the crime he
or she was about to commit. In connection
with this offence the primary and real inten-
tion of the preliminary warning insisted upon
by the Talmud will be clearly understood.
In other crimes men alone, as a rule, were
the culprits. In adultery women would ne-
cessarily come prominently before the Syn-
hedrin as the accused. Now, a vast amount
of nonsense has been written regarding the
position of females among the Hebrews.
Argument ample and instance abounding
have been produced to demonstrate the
light esteem in which women were held by
IO4 Criminal Code of the Jews.
the Jews. A deal of misdirected ingenuity
has been applied to refuting these assertions.
Like the lex talionis, the subject has never
been properly explained. The Talmud is no
orderly digest or methodised summary of
laws such as moderns are accustomed to. It
is a veritable garden of wild growths ; a lux-
uriant wilderness. Argument and dicta and
enactment and proverb and legend are mixed
and commingled in a harmonious confusion.
It requires some amount of dexterity to pick
one's way. Throughout this medley women
are regarded from two points of view — the
legal and the social. The references to
women require, therefore, to be sorted and
strung together in two separate series. As
to the social position of women, a few quota-
tions will suffice to show the high regard in
which they were held. ' The verse in the
Book of Job (v. 24), which says " thou shalt
see prosperity in thy tents " refers,' explains
the Talmud, ' to him who, loving his wife as
himself, has more regard for her honour than
Murder, Adultery, and Idolatry. 105
for his own ! ' The Rabbi Johanan says, 'he
who has the misfortune to lose his wife, is as
though he had witnessed the destruction of
the Temple. For sacred writ does not dis-
dain to figure in the death of Ezekiel's wife
the overthrow of the holy edifice.' The
learned Samuel, the son of Nahaman (who
lost his first spouse when very young), de-
clares ' that all things may be replaced ; but
never the wife of one's youth.' Rabbi Eleazer
adds : 'The altar itself weeps when a man
divorces his wife.' These sayings will suffice
to indicate that socially women were regarded
with the highest respect and esteem. But
legally their status wras undeniably inferior to
that of men. A woman was not in certain
lawsuits permitted to give evidence. She
was regarded as one uninstructed ; one un-
versed in the law. But mark how this
worked. When a woman appeared before
the Synhedrin, charged with adultery, she
was presumably ignorant of the gravity of
the offence she had committed, and unaware
io6 Criminal Code of ike Jews.
of the penalty entailed thereby, unless evi-
dence to the contrary was forthcoming. To
condemn an untaught person was opposed to
the principles of Talmudic laws. In order,
therefore, to convict an adulteress it was in-
dispensable, owing to her legal position, that
competent witnesses should have warned her
prior to the commission of the crime of its
serious character and its punishment. Such
testimony was not likely to be produced in
these cases. Its absence declared the ac-
cused not responsible for the offence. The
enactment of the 'preliminary caution' was
therefore an argument in favour of the ac-
quittal of a woman charged with any crime,
notably with adultery. This may all seem
very strange — perhaps not quite credible ;
but it is true, nevertheless.
Idolatry was considered the most heinous
offence of which a Jew could be guilty.
Among a people professing a monotheistic
faith, hedged in by nations given to every form
of paganism, prone to abominations of every
Murder, Adultery, and Idolatry. 107
kind, it was thought necessary that any public
desecration of religion should be severely
punished. Every Jew was perfectly well
acquainted with the grand principle of his
creed, the ahidus hashem — the unity of the
godhead, and the spirituality of the Creator.
Every Hebrew knew that idolatry in each
and every form was an utter abomination in
the sight of heaven. Hence in such cases
ignorance could not be pleaded in extenua-
tion of the crime ; nor was any preliminary
warning requisite in order that judgment of
death might be legally pronounced. In ordi-
nary affairs, as in the more serious matters
capitally punishable, the Hebrew code did
not permit of any sort of detective system.
A man was not permitted to secrete himself
in order to watch his neighbour. A witness
who had acted in such a manner would not
have been permitted to give evidence.
When, however, a Jew was believed to have
publicly devoted himself to idolatry, and to
have endeavoured to seduce his neighbours
io8 Criminal Code of the Jews.
to the same practices, any ruse was permitted
for the purpose of demonstrating his guilt.
If, for example, he declared to one person
only that in such and such a grove an image
was erected, and attempted to persuade him
to join in worship there, the latter was per-
mitted to hide a friend wherever convenient,
and calling the idolater, might say to him,
' Now tell me more about that image you
worship.' If the backslider repeated his soli-
citations the testimony of the two witnesses
was procured, which was necessary for con-
demnation. But previous to laying the mat-
ter before a Synhedrin it was imperative upon
both these witnesses to reason with the idol-
ater. They were, according to the Talmud,
to speak kindly with him. They should ad-
dress him and say : ' How ! would you have
us forsake our God who is in heaven to follow
deities who are made of wood and stone ? '
If the erring brother gave ear to their exhor-
tation and quitted his pagan practices, the
witnesses who knew of his backsliding were
Murder, Adultery, and Idolatry. 109
not permitted to mention the fact to any
neighbours or friends. ' He who repents
must never be reminded of his former ini-
quities.' But if obstinately bent on worship-
ping the image he had found and set up for
himself, the depositions"1 as to the circum-
stances were laid before the tribunal. These
facts were, however, only sufficient to found
an accusation upon. To convict it was neces-
sary to prove that the offender was really given
to the pagan practices to which he endea-
voured to persuade his brethren. Similarly,
in the case of a simple idolater it was requisite
to prove more than mere adoration of an
image or prostration before it, or dressing
and tending it. It must be shown that he
acknowledged it verbally as his divinity, and
immolated sacrifices or offered incense in its
honour. This was essential in order to con-
stitute idolatry punishable with death.
The remaining capital offence — disobedi-
ence to the judgment of the great Synhedrin
of Jerusalem — has been already referred to.
no Criminal Code of the Jews.
The penalty was necessary in this case, not
solely on account of the mischief resulting
from an elder or judge, having influence and
authority, acting and inducing others to act
contrary to tradition, but for another reason.
It must be borne in mind that the Synhedrin
at Jerusalem was the parliament of the nation,
and disregard of its authority was, in point
of fact, a political crime equivalent to high
treason. An execution for such an offence
could only take place in Jerusalem ; and
only during the celebration of one of the
Shalosh Regalim — three great festivals of
the year — when every male came up to the
capital. By this arrangement the injunction
of the Pentateuch was fulfilled (Deut. xvii.
13), and ' All Israel heard.'
Two other punishments are prescribed by
the Hebrew code : internment in a city of re-
fuge, and flogging — the former for accident-
ally killing a neighbour ; the latter for a large
number of serious offences. These we shall
now proceed to discuss.
Homicide (accidental], and Perjury. 1 1 1
CHAPTER IX.
CITIES OF REFUGE — THE PUNISHMENT FOR PERJURY —
FLOGGING.
HOMICIDE by misadventure — that is, the ac-
cidental killing of a fellow-man — entailed
upon the offender the penalty of internment in
a city of refuge. The slaying of a neighbour
by mischance was not, however, regarded as
a crime properly so-called ; nor does the Tal-
mud consider the penalty thereby incurred in
the light of a punishment. The Pentateuch,
in common with all ancient legal systems,
recognised the right of private vengeance in
cases of murder and manslaughter. The
family, relatives, and connections of the
deceased could slay the culprit, wherever dis-
covered. But most nations arranged the
matter satisfactorily by a pecuniary payment.
The Athenians, for example, placed the nego-
112 Criminal Code of the Jews.
tiations for this purpose in the hands of the
Ephetes. This was a progressive step. The
Mosaic code went further. It abolished the
blood-money altogether ; but this left the
offender at the mercy of those who were en-
titled to avenge the death. Recollecting
probably his own misadventure with the
Egyptian whom he accidentally slew, and his
compulsory flight in consequence, Moses pro-
vided in his legislative scheme for the estab-
lishment of cities of refuge. To these the
Hebrew who by mischance killed his neigh-
bour was permitted to proceed. Here he
was in safety — secure from the vengeance of
the Gdel ftadam, the ' redeemer of the blood.'
The arrangement was, therefore, rather in the
nature of a privilege than a punishment.
Internment in one of the cities of refuge
was not the scampering process depicted in the
popular engraving : a man in the last stage of
exhaustion at the gate of an Eastern town ;
his pursuers close upon him, arrows fixed and
bows drawn ; his arms stretched imploringly
Homicide (accidental], and Perjury. 113
towards a fair Jewish damsel with pitcher
gracefully poised upon her head. This may
be extremely picturesque, but it is miserably
unlike the custom in vogue among the later
Hebrews. Internment in a city of refuge was
a sober judicial proceeding. He who claimed
the privilege was tried before the Synhedrin
like any ordinary criminal. He was required
to undergo examination ; to confront wit-
nesses ; to produce evidence, precisely as in
the case of other offenders. He had to prove
that the homicide was purely accidental ;
that he had borne no malice against his
neighbour ; that he had not lain in wait for
him to slay him. Only when the judges
were convinced that the crime was homicide
by misadventure was the culprit adjudged to
be interned in one of the sheltering cities.
There was no scurrying in the matter ; no
abrupt flight ; no hot pursuit, and no appeal
for shelter. As soon as judgment was pro-
nounced the criminal was conducted to one
of the appointed places. He was accompanied
1 14 Criminal Code of the Jews.
the whole distance by two talmide-chachamim
• — disciples of the rabbins. The avengers of
the blood dared not interfere with the offender
on the way. To slay him would have been
murder, punishable with death. The cities
of refuge were six in number — three on this
side Jordan, three on the other. They were
so situate as to be almost opposite each
other. Hebron in Judah, over against Bezer
in the Wilderness ; Sechem in Ephraim,
against Raamath Gilead ; Kadesh Naphthali,
against Golan. These places divided Pales-
tine into four equal portions, being so arranged
that the distances from the southern bound-
ary to Hebron, from Hebron to Sechem,
from Sechem to Kadesh, and from Kadesh
to the northern frontier, were nearly identical.
There were excellent roads from one to the
other ; at intervals signposts were erected
indicating the way to the nearest city of
refuge. Arrived at whichever of these he
had selected, the conductors handed the
offender into the charge of the Levites.
Homicide (accidental], and Perjury. 115
These allotted to him a dwelling place. He
was in every respect free ; but not permitted
to go beyond the boundaries of the territory
pertaining to the town. Here he remained
until the death of the high priest. Whenever
this occurred he was at liberty to return to
his home. The Hebrew who had the mis-
fortune to slay accidentally a fellow man
could likewise seek refuge, temporarily, in
any one of the forty-two levitical cities of
Palestine.
The Talmud distinguishes two kinds of
accidental homicide — one where the death is
due to the conduct or negligence of the ac-
cused only ; the other, where the deceased
contributed thereto by some act of his own.
For instance, a man is engaged building a
house in a public street ; he is carrying a
heavy stone on to the roof. This falls upon
a neighbour passing below and kills him.
The victim here is not to blame. In such a
case the culprit would have been interned in
a city of refuge. Again, a person is occupied
I 2
1 1 6 Criminal Code of the yews.
in repairing an edifice situated in a private
court to which no one but the owner has the
right of access. A stranger enters ; as he
does so a stone falls and kills him. In a case
like this the deceased was considered as
having contributed to his own death ; and no
punishment whatever followed. A father
who chastised his son and undesignedly killed
him ; a teacher who punished a pupil and
unintentionally caused his death ; and the
person who, by order of the Synhedrin, in-
flicted corporal punishment upon a culprit,
which unfortunately terminated fatally — these
likewise were not interned in a city of refuge.
The reason of these three exceptions in the
application of this law is self-evident. But in
all other cases of homicide coming under the
category before mentioned, where the victim
was not a contributory to his own death, the
penalty was enforced. A noteworthy excep-
tion is, however, found in the Talmud. There
resided among the Jews a great number of
so-called proselytes of the gate — strangers
Homicide (accidental}, and Perjury. 117
who had in all essentials adopted the Hebrew
faith. If one of these by misadventure killed
an Israelite he was not conducted to any of
the six cities, but was sent back to his native
country. The motive here is sound and
practical. The internment in a city of refuge
lasted, as before said, until the demise of the
high priest. If this sacred functionary was
a younger man than the offender, the latter
would probably have been exiled from home
and family during the whole of his lifetime.
Better, therefore, urged the Rabbins, that he
return at once to his native land, safe from
the pursuit of those entitled to exact ven-
geance for the crime he had by misadventure
committed. And so in the case of a Hebrew
accidentally killing a resident — &gher thoshab,
as the rabbins term him — internment was
considered unnecessary. There were no
relatives in Palestine to avenge the death of
the sojourner ; no useful purpose could there-
fore be served by exiling the culprit from his
home for a number of years. In the case of
1 1 8 Criminal Code of the Jews.
a high priest dying after the condemnation of
a criminal, but before he arri^d at the city of
refuge, the latter was free. If a new high
priest had been elected before judgment was
pronounced in a trial for homicide, the intern-
ment took place. If any person was so un-
fortunate as to kill accidentally the high
priest, or if this functionary was himself the
culprit, he was confined to one of the ap-
pointed towns during the whole of his life-
time. Those who were conducted to the
cities of refuge for the inadvertent murder of
a fellow-man entailed no expense upon the
State or their friends. The mother of the
high priest supplied these offenders with food
and clothing, in order that they might not
pray for the death of her son !
The punishment provided for perjurers
by the Pentateuch is peculiar. Like another
Mosaic ordinance it was probably suggested
to the Hebrew legislator by the practice of
the ancient Egyptians. A false witness was
condemned to suffer whatever pains and
Homicide (accidental], and Perjury. 119
penalties a conviction would have entailed
upon those whom he wrongfully accused.
Theoretically this appears extremely simple ;
its practical application "was beset with diffi-
culties. Nor is the language of the Bible
sufficiently explicit in the case of sentence of
death to render misinterpretation impossible.
We have before indicated one case where a
result of this injunction would prove a sheer
absurdity, and the perjurer escape without
any punishment whatever. Other instances
are readily furnished. A man, for example,
accuses another of accidental homicide ; the
penalty of this offence is internment in a city
of refuge. The testimony .is proved to be
false ; the witness perjured. Is he therefore
to be conducted to a city of refuge ? An
offender confined to one of these places was
not undergoing a species of imprisonment.
He was perfectly free. The only influence
that induced — nay, compelled — him to remain
was the dread of being slain by the avenger
of blood. A false witness, if condemned to
1 20 Criminal Code of the Jews.
this internment, would have no fear of any
such consequences ; the punishment would
be ridiculous. In such a case the perjurer
would laugh at the sentence and practically
escape scot free. Again, a man accuses one
of his neighbours of stealing a sheep. The
law in this case enjoined fivefold restitution.
If the thief be unable to pay the amount he
could be sold into servitude until the next
jubilee in order to furnish the money. The
prisoner in this case is found to be poor.
The witness is proved to have committed
perjury : the accused is set free. How was
the individual guilty of a false oath to be
punished in this instance ? He might fairly
object to being sold ; the neighbour whom
he sought to ruin might justly urge that a
money penalty was by no means equivalent
to the years of servitude he could have been
compelled to endure had the charge against
him been established. The judges would
find themselves in a difficulty. Yet more
complicated was the application of the Mosaic
Homicide (accidental], and Perjury. 121
ordinance where the sentence of death was
incurred. A difficulty in the interpretation
of the law occurred at the very outset. The
Sadducees — who adhered to the letter of
Scripture — urged that a perjurer could not
be capitally condemned unless the person
whom he falsely accused had already been
executed. They based their arguments upon
the Biblical formula, ' Life for life.' Against
these the rabbinists produced the Mosaic
injunction. This expressly declares that the
false witness should be punished, as he had
' intended ' that the accused should suffer.
The Ghemara holds the law to be both im-
practicable and incomprehensible. It seems,
however, on one occasion to have been car-
ried into effect. The instance is recorded in
the Talmud. Judah, the son of Tabai, con-
demned a perjurer to death ; he was accord-
ingly executed. The rabbin subsequently
related the circumstance to Shimon, the son
of Shatah. The latter thereupon asserted
that innocent blood had been shed, and ex-
122 Criminal Code of the
pounded the law to his colleague. From
thenceforward the son of Tabai never pro-
nounced a judgment in the absence of Shimon
ben Shatah ; and every day as long as he
lived he visited the cemetery and threw him-
self upon the grave of the witness whom he
had condemned. To obviate any difficulties
the Talmud prescribed for all cases of per-
jury one uniform punishment : stripes — that
is, flogging.
According to the prescription of the
Pentateuch an offender sentenced to be
flogged was always punished in the presence
of the Synhedrin that condemned him. The
stripes, which might not exceed thirty-nine in
number, were inflicted mercifully. A post
was fixed in the earth ; to this the hands of
the offender were tied. The hazan — door-
keeper, attendant, messenger, and in modern
times the reader of the community — per-
formed the duty of executioner. The culprit
was first stripped to the waist. Two quali-
fied judges then examined him to determine
Homicide (accidental], and Perjury. 123
how many stripes he was strong enough
to endure. If these experts disagreed in
their estimate the smaller number was ac-
cepted. If they decided that the offender
was capable of enduring the whole thirty-nine,
and it was subsequently found that he was
not sufficiently robust to do so, punishment
ceased. If, on the other hand, they consi-
dered that, say, only eighteen stripes should
be inflicted, and it was afterwards seen that
the criminal could bear the full quota, no
addition might be made to the original esti-
mate. In all cases the number fixed must
be divisible into three even portions ; that is,
if the judges decided the offender could bear
twenty stripes, they must only award eighteen ;
if eight, only six. The handle of the whip
was four fingers' breadth long ; the thong of
the same breadth and long enough to cross
the body. One of the judges gave the word
' strike,' as the signal for each stripe ; another
kept reckoning of the number : a third read
three portions of Scripture aloud during the
124 Criminal Code of the Jews.
punishment ; the concluding verse being from
the Psalms (Ixxviii. 38) : ' But He, being
merciful, forgiveth iniquity.' If at any time
during the flogging involuntary signs of
weakness were observed the* culprit was at
once released. If he succeeded in freeing
himself from the post or managed to escape,
the punishment could not again be inflicted.
If the whip broke during the flogging, it was
not permitted to repair the lash and continue
the stripes. In the Talmud stripes are pre-
scribed as the penalty of nearly all ordinary
offences of which the criminal code in those
times took cognisance. Adultery, immorality,
sacrilege, and public desecration of the Mosaic
ceremonial laws were all in the later period
of Jewish nationality punishable in this man-
ner. Practically though, flogging seems to
have been confined to perjury.
Miscellaneous Laws. 125
CHAPTER X.
MISCELLANEOUS LAWS — CONCLUSION.
THE Hebrew Penal Code necessarily includes
a number of miscellaneous enactments not
reducible under general headings. Many of
these are interesting. The Talmud, for ex-
ample, recognises justifiable homicide. Under
certain circumstances it was permissible to
kill a would-be criminal, in order to prevent
the commission of either murder or adultery —
as the Ghemara puts it, ' to save an innocent
man's life or a woman's honour.' In self-
defence ; likewise to protect one's person or
property against footpads or burglars it was
of course allowable to take away life. Any
offence perpetrated under compulsion or in
mortal fear was excusable in the eyes of the
law — excepting only murder and adultery.
1 26 Criminal Code of the Jews.
If a man was threatened with death unless
he consented to assassinate a neighbour, he
was directed rather to die than slay an inno-
cent person. Similarly, the Talmud enjoins
every man to prefer death to dishonouring
under compulsion an innocent woman. In
times of religious persecution it was for-
bidden to violate in public the ordinances of
the Bible. But the conditions constituting
such violation were clearly discriminated. A
man might attend to an idol, he might wash
and anoint it, bring wood and lights to
pagan temples ; but if ordered under penalty
of death to publicly acknowledge an image as
his God he was bound to refuse. If a pagan
commanded a Jew to cut grass for his horse
on a Sabbath day he might do so ; but if
ordered to cut the fodder and throw it into
the river (i.e. needlessly to desecrate his faith)
he was not permitted to comply.
Another injunction of the Mosaic Code —
copied from the laws of the Egyptians —
required a man to risk even his life when
Miscellaneous Laws. 127
he saw a fellow-man in danger, under the
penalty of flogging. (The Egyptians punished
the omission with stripes or three days' im-
prisonment without food.) Stealing a fellow-
Jew and selling him was, as we have already
said, a capital crime. Stealing and con-
cealing a man entailed upon the offender
public flogging. An elder or judge who
simply taught in contravention of the tra-
ditions of the Great Synhedrin of Jerusalem
was not condemned to death unless he ren-
dered decisions in accordance with his heter-
odox views and saw his judgments carried
into effect. A criminal three times con-
victed and punished for an offence — adul-
tery, paganism, perjury, &c. — entailing flog-
ging, was imprisoned for life. An offender
who succeeded in escaping when led to exe-
cution was not reconducted, when captured,
to the tribunal by which he was tried and
condemned. Two witnesses deposed to the
fact of his conviction before the nearest
Synhedrin, and the sentence was thereupon
128 Criminal Code of the Jews.
carried out. A person tried for two crimes,
each entailing a different kind of death, and
convicted of both, was punished with the
least painful of the two modes of execution.
Two persons charged with a capital offence
would not be heard and judged on the same
day ; not even if paramours in adultery.
Confiscation of property was unknown to
the Hebrew law, a malefactor's possessions
always descending to the natural heritors.
Double punishment — bis in idem — such as
the payment of a pecuniary penalty in addi-
tion to flogging, was not permissible, except
in the one instance where the infliction of
both is specially prescribed in the Pentateuch.
The survey, necessarily brief and imper-
fect, here completed of the Criminal Laws of
the Talmud, will enable even those who ' run
and read ' to form some idea of the Hebrew
Penal Code and the practical mode of ad-
ministering justice as it prevailed among the
Israelites of old. The simplicity of the
organisation, the mildness of the punish-
Miscellaneous Laws. 129
ments, and the humanity throughout appa-
rent, may be left to speak for themselves.
Before quitting the subject, a few words on
the character of the men who framed and
interpreted these enactments may not be
amiss.
The favourite accusation hurled at the
heads of the rabbins (apart from the epi-
thets ' prejudiced ' and ' narrow-minded ') is
that they adhered to the letter of the law ;
they did not inquire into the motives, into
the spirit of its injunctions. Nothing can be
more untrue ; nothing more opposed to actual
fact. He who would have proof of this need
but read a single page of the Talmud, or
have it read to him by some competent
scholar. The adherence to the letter of the
Pentateuch, which is always recommended
by the traditional school, has a reason sound
and practical. This is indicated in one of
the most interesting bits of argument con-
tained in the Treatise Synhedrin.
Only one injunction in the Five Books of
K
130 Criminal Code of the
Moses is distinctly supplied with motive :
the King is commanded not to take unto him
a number of wives, in order that he may not
be corrupted and led away to idolatry. Here
the reason of the precept is distinctly given.
The spirit, the essence of the enactment is
that the Sovereign be not seduced to pa-
ganism. The Talmud points out that the
indication of the motive in this instance is
calculated to produce the very contrary effect
to that intended. For the following reason : —
' A good man reading it will say, as King
Solomon did, The object of this command
is to preserve me from idolatry ; surely I
need not fear being seduced to the worship
of strange deities. I am not afraid of vio-
lating the spirit of the law ; therefore I need
not adhere to the letter of the precept, pro-
vided I bear in mind its purport. Yet the
very self-confidence engendered by regarding
the motive only caused the fall of the wisest
of men. For he took him many wives and
they did corrupt him.' The argument of the
Miscellaneous Laws. 131
rabbins in reference to this precept shows a
sound knowledge of human nature and its
peculiar weaknesses.
As regards the narrow prejudices of the
rabbins, it may be worth while again to call
attention to the charge addressed to wit-
nesses when about to give evidence, cau-
tioning them against supposing that a Jew
was superior to the men of other nations.
Time after time the Talmud emphatically de-
clares anent proselytism that it is not neces-
sary to become a Hebrew in order to par-
ticipate in a future existence. The Mishna,
moreover, narrates how on the Day of Atone-
ment, the most sacred and solemn fast of the
year, when the Israelites sought pardon for
their transgressions, seventy additional sacri-
fices were offered in the Temple to procure
remission for the iniquities committed by the
seventy nations then supposed to exist.
In the practical regulations of every-day
life the same liberality is apparent. A pagan
living among the Jews was not permitted to
K 2
132 Criminal Code of the Jews.
keep the seventh day as a Sabbath if he
rested upon another day in accordance with
the custom of his own people. ' No man
must be idle two days,' remarks the Talmud,
' in each week.' A pagan who blasphemed
the Almighty was not punished ; ' for/ say
the rabbins, ' he does not believe in our God.'
These are somewhat unusual modes of mani-
festing narrow-mindedness and prejudice and
bigotry.
Of the criminal code formulated by these
rabbins it may fairly be said, in the words of
an old Chinese adage, that ' the pen of the
law fears the thunder of Heaven.' Nothing,
perhaps, can be more characteristic of the
spirit of the Hebrew penal system, of its
treatment of offenders, and of its modes of
punishment than the graceful saying attri-
buted in the Talmud to Berurah, wife of the
pious Rabbi Meier and daughter of the no
less renowned Chanina ben T'radyon. The
Rabbi Meier was plagued with some ex-
tremely wicked neighbours. Angered at
Miscellaneous Laws. 133
their discreditable conduct, he cursed them.
His gentle wife heard him. ' Nay, my hus-
band/ she said, addressing him, ' cease thou ;
call rather upon the Almighty to turn thine
neighbours from their evil ways, that they
die not. How says the sweet Psalmist of
Israel ? We do not find, " Let sinners perish
from off the earth," but " sins ; " for if sin
be destroyed and iniquity be blotted out,
the earth will no longer be contaminated by
sinners.' In this spirit the Hebrew criminal
laws were conceived, and in this spirit were
they interpreted and administered.
LONDON : PRINTED BY
SPOTTISWOODE AND CO., NEW-STREET SQUARE
AND PARLIAMENT STREET
lit
SMITH, ELDER, & CO.'S NEW BOOKS.
Under the Sanction of HER MAJESTY THE QUEEN.
In the press, demy 8vo. with Portraits, a Facsimile, and an Index, i8j.
THE FIFTH AND LAST VOLUME OF
THE LIFE OF HIS ROYAL HIGHNESS THE PRINCE CONSORT.
By THEODORE MARTIN.
THE THACKERA-Y GIFT-BOOK.
NEW ILLUSTRATED EDITION OF THACKERAY'S ' BALLADS.'
Just published, small 410. i6s.
BALLADS.
BY WILLIAM MAKEPEACE THACKERAY.
WITH A PORTRAIT OF THE AUTHOR,
And 56 Illustrations by the Author, Mrs. BUTLER (Miss Elizabeth
'1 hompson), GEORGE DU MAURIER, JOHN COLLIER, H. FURNISS, G. G.
KILBURNE, M. FITZGERALD, and J. P. ATKINSON. Printed on toned
paper by CLAY, SONS, & TAYLOR ; and elegantly bound in cloth,
gilt edges, by BURN.
GIFT-BOOK FOR LOVERS OF RURAL LIFE.
ILLUSTRATED EDITION OF 'THE GAMEKEEPER AT HOME.'
Large crown 8vo. IOT. 6d.
THE GAMEKEEPER AT HOME;
OR, SKETCHES OF NATURAL HISTORY, RURAL LIFE,
AND POACHING.
With 41 Illustrations specially drawn for the work by CHARLES WHYMPER.
LIFE OF LIEUT. -GEN. SIR JAMES OUTRAM.
By Major-General Sir FREDERIC J. GOLDSMID, C.B., K. C.S.I.
2 vols. demy 8vo. [/» the press.
THE AMATEUR POACHER.
By the Author of ' The Gamekeeper at Home,' 'Wild Life in
a Southern County.'
Crown 8vo. 5.?.
A RULE OF PROPORTION FOR THE HUMAN FIGURE.
By JOHN MARSHALL, F.R.S., F.R.C.S., Professor of Anatomy,
Royal Academy of Arts.
Illustrated by JOHN S. CUTHBKRT. Folio, in wrapper, &s. ; in portfolio, gs.
THE POETRY OF ASTRONOMY.
By RICHARD A. PROCTOR, Author of "The Borderland of Science,'
' Science Byways,' &c. Crown 8vo. [In the press,
London: SMITH, ELDER, & CO., 15 Waterloo Place.
SMITH, ELDER, & CO.'S PUBLICATIONS.
WORKS BY MATTHEW ARNOLD.
LAST ESSAYS ON CHURCH AND RELIGION. By MATTHEW
ARNOLD. With a Preface. Crown 8vo. 7.5.
MIXED ESSAYS. Crown 8vo. gs.
CONTENTS : — Democracy— Equality — Irish Catholicism and British Liberalism- Porro
Unutn est Necessariunt — A Guide to English Literature — Falkland — A French Critic on
Milton — A French Critic on Goethe— George Sand.
LITERATURE AND DOGMA : an Essay towards a Better Apprehen-
sion of the Bible. Fifth Edition. Crown 8vo. gs.
*»* TheReferences to all the Bible Quotations are in this Edition added for the first time.
GOD AND THE BIBLE: a Review of Objections to 'Literature and
Dogma.' Reprinted from the Contemporary Review. Entirely Revised, with
a Preface. Crown 8vo. gs.
ST. PAUL AND PROTESTANTISM. With an Essay on Puritanism
and the Church of England. Third Edition, Revised. Small crown 8vo. 4.1. kd.
CULTURE AND ANARCHY: an Essay in Political and Social
Criticism. Reprinted from the Cornhill Magazine. With a Preface aud Altera-
tions. Second Edition, yj.
ON THE STUDY of CELTIC LITERATURE. 8vo. 8j. 6d.
FRIENDSHIP'S GARLAND ; being the Conversations, Letters, and
Opinions of the late Arminius Baron Von-Thunder-Ten-Tronckh. Collected and
Edited, with a Dedicatory Letter to Adolescens Leo, Esq,, of theDaify Telegraph.
Small Crown 8vo. 4$. dd.
WORKS BY THE LATE GEORGE HENRY LEWES.
THE STORY OF GOETHE'S LIFE. By GEORGE HENRY LEWES.
Crown 8vo. ys. 6d.
THE LIFE OF GOETHE. Third Edition, revised according to the
latest Documents, i vol. With Portrait. 8vo. i6r.
ARISTOTLE : a Chapter from the History of Science. With Analyses
of Aristotle's Scientific Writings. Demy 8vo. 15*.
STUDIES IN ANIMAL LIFE. With Coloured Frontispiece and
other Illustrations. Crown 8vo. 5$.
ON ACTORS AND THE ART OF ACTING. Crown 8vo. Js. dd.
WORKS BY LESLIE STEPHEN.
A HISTORY OF ENGLISH THOUGHT IN THE EIGHTEENTH
CENTURY. 2 vols. Crown 8vo. 28*.
HOURS IN A LIBRARY. First Series. By LESLIE STEPHEN.
Second Edition. Crown 8vo. gs.
CONTENTS : — Defoe's Novels— Richardson's Novels — Pope as Moralist — Mr. Elwin's
Edition of Pope — Some Words about Sir Walter Scott — Nathaniel Hawthorne — Balzac's
Novels — De Quincey.
HOURS IN A LIBRARY. Second Series. Crown 8vo. gs.
CONTENTS: — Sir Thomas Browne — Jonathan Edwards— William Law — Horace Walpole
— Dr. Johnson's Writings — Crabbe's Poetry — William Hazlitt — Mr. Disraeli's Novels.
HOURS IN A LIBRARY. Third Series. Crown 8vo. gs.
CONTENTS : — Massinger — Fielding- Cowper and Rousseau — Edinburgh Reviewers —
Wordsworth's Ethics — Landor — Macaulay — Charlotte Bronte — Kingsley.
London: SMITH, ELDER, & CO., 15 Waterloo Place.
University of California
SOUTHERN REGIONAL LIBRARY FACILITY
405 Hilgard Avenue, Los Angeles, CA 90024-1388
Return this material to the library
from which it was borrowed.
LD
"HO?!} I in**
JAN 2 .9 19^2
REC'DC.LQECIZ'O
r
UC SOUTHERN REGIONAL LIBRARY FACILITY
A 000047710 9
*
Live Music Archive
Librivox Free Audio
Metropolitan Museum
Cleveland Museum of Art
Internet Arcade
Console Living Room
Open Library
American Libraries
TV News
Understanding 9/11